27 October 2020
Respected learned lawyers, I humbly request you to clarify the following doubt of mine in the Criminal Law Procedure. A cheque bounce case was filed before the District Munsif-cum-Judicial Magistrate u/s.138 r/w 142 of Negotiable Instrument Act and also directing the accused to pay a sum of Rs.2,75,000/- as compensation u/s.357(3) of Cr.P.C. On the date of judgment, the accused was absconding and hence NBW was issued against her by trial court. The Trial Court came to the conclusion that the case against was proved and the accused was convicted and sentenced to undergo S.I. for one year for the offence and also directing the accused to pay a sum of Rs. 2,75,000/- as compensation amount. Since the accused was absconding, the trial court issued fresh non- bailable warrant against the accused for securing her to undergo the imprisonment. Meanwhile, the accused filed an appeal petition in the sessions court challenging the judgment and conviction passed by the lower court. In the result, the criminal appeal was dismissed and confirming the Judgment and conviction passed by the learned District Munsif-cum-Judicial Magistrate, directed to take further steps according to law to secure the appellant/accused. However, the accused is found roaming scot free and it appears that the accused has not undergone he imprisonment. How is this possible ? Is there any way in the law to waive the imprisonment awarded by the lower court which was confirmed by the next appellate court ? Please elucidate. Thanks & Regards
28 October 2020
The facts posted are less than convincing. If the accused had absconded, no trial or conviction could have taken place! Moreover, such a lengthy imprisonment is never imposed in a cheque bouncing case. The present norm is imprisonment till the raising of the Court.
28 October 2020
1. IF Appellate court has upheld order of Trial Court, THEN there is no question of exemption /waive of imprisonment. AFTER the Trial Court has passed conviction order, THEN the said order cannot be reversed by Trial Court under any circumstances.
2. Complainant may file execution request of the trial court order, more so specifically quoting that apprehensively the Police is unwilling to arrest & imprison the convicted person.
30 October 2020
Dear Mr. Balaji Bhakthavathsal, The trial court can not (and should not) have pronounced order on sentence, after holding accused as "guilty" in the absence of convict. There is procedural lapse on the part of Trail Court, if your statement is true. Could you please verify it ?
However, before admission of appeal before the Sessions Court the convict has to seek "fresh" bail for suspension of sentence passed by the Trail Court, implies that she (convict) has to appear before Sessions Court as well as seek bail from Trail Court as directed by appellate (Sessions) court. It is absolutely clear that the convict cannot remain "absconder" as stated by you. Could you please recheck and correct me, if I am wrong in my legal proposition / opinion / procedure on the subject. Thanks and regards