Sunday, 24 January 2021

Whether the court can direct concurrent running of default sentences in cheque dishonour case?

Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and the law laid down by the Hon'ble Supreme Court in State of Punjab vs. Madan Lal, V.K.Bansal vs. State of Haryana & Ors., Shyam Pal vs. Dayawati Besoya & Anr. and Ammavasai & Anr. vs. Inspector of Police & Ors. (supra), I am of the considered view that it would not be inconsistent with the administration of criminal justice if the petitioner is allowed the benefit of discretion contained in section 427 of the Code to meet the ends of justice. However, as per the law laid down by the Hon'ble Supreme Court in V.K.Bansal vs. State of Haryana & Ors. and Shyam Pal vs. Dayawati Besoya & Anr. (supra), the direction for concurrent running of sentences would be limited only to the substantive sentences alone.

In such circumstances, the present misc. petition is allowed and it is ordered that the substantive sentences awarded to the petitioner in the above referred 32 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc(Pet.) No. 947/2020

Lakshmi Narayan Songara Vs  State,


HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order : 21/01/2021

In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.

The petitioner has preferred this criminal misc. petition under Section 482 Cr. P.C., for the following reliefs :-

?It is, therefore, most humbly and respectfully prayed that this criminal misc. petition may kindly be allowed and it may kindly be ordered to execute the sentences concurrently in pursuance of impugned judgments dated 05.02.2016, 04.04.2016, 13.07.2016 and 29.05.2019 passed by learned ACJM/JM Court, Suratgarh in Criminal Case No.635/2012, 929/2012, 427/2012 and 767/2012 respectively and same was upheld by ADJ Court, Suratgarh, District Sri Ganganagar vide its orders dated 15.01.2020.?

Counsel for the petitioner submits that the present case is squarely covered by the decision rendered by this Court in S.B.

Criminal Misc. Petition No.2883/2014 Rajender Kabra Vs. State

of Rajasthan decided on 17.02.2017. The relevant portion of the judgment in Rajender Kabra (supra) reads as under :-

This second criminal misc. petition under section 482 CrPC has been preferred on behalf of the petitioner with a prayer that the sentences awarded to him in 32 different cases for the offence punishable under section 138 of the Negotiable Instruments Act, details of which are being provided in later part of this order, may be ordered to run concurrently.

The earlier S.B.Criminal Misc. Petition No.113/2013 preferred by the petitioner before this Court was disposed of by a Co-ordinate Bench of this Court on 16.05.2013. The order dated 16.05.2013 is reproduced hereunder:

The present petitioner had issued cheques to various

persons. Counsel for the petitioner submits that due to bad financial condition of the petitioner and the circumstances beyond his control, all the cheques bounced and petitioner has been convicted in 32 cases.

In the present petition, prayer has been made that sentences awarded in 32 cases may be ordered to run concurrently.

Counsel for the petitioner very fairly submits that as per judgment of the Hon'ble Apex Court, it is only appellate Court or revisional Court which can direct that the sentences should run concurrently and this power cannot be exercised under Section 482 Cr.P.C. Therefore, counsel for the petitioner submits that a directions be given to the State Government to consider the representation of the petitioner sympathetically, otherwise, if the sentences are made to run concurrently, the petitioner shall remain behind the bars for 35 years.

After hearing counsel for the parties, present petition is disposed of in terms of the statement made by the counsel for the State.

Let petitioner file a representation to the State Authorities for remitting the sentence or ordering that the sentence awarded upon the petitioner in all cases shall ran concurrently. In case, such a representation is preferred within two weeks' from today, the State Authorities shall take a conscious decision thereupon within two months. Liberty is also granted to petitioner to take recourse to lawful remedy in case State Authorities decline the representation.?

The petitioner has preferred this criminal misc. petition claiming that though pursuant to the order passed by this Court in S.B.Cr.Misc. Petition No.113/2013, wife of the petitioner had already moved a representation to the Chief Secretary of the Government of Rajasthan but the same was returned with a remark that she may move a representation before the Government of India. It is averred in the petition that as the prescribed two weeks time for making representation on behalf of the petitioner has already been expired, therefore, the petitioner is again approaching this Court by way of this criminal misc. petition seeking above mentioned relief.

In the meantime, a reference was made to the Division Bench of this Court to adjudicate the following question:


WHETHER, the High Court exercising powers under Section 482 Cr.P.C., invoke Section 427 Cr.P.C. and order that sentences awarded in two different cases shall run concurrently.?

The Division Bench of this Court in Arjun Ram vs. State of Rajasthan and Ors. (D.B.Criminal Misc. Petition No.1912/2013 along with three other miscellaneous petitions) reported in 2016(1) Cr.L.R. (Raj.) 346, answered the said reference in the following terms:

As per Section 427 Code of Criminal Procedure, in normal course a person already undergoing a sentence of imprisonment, if sentenced on a subsequent conviction to imprisonment, such imprisonment commence at the expiration of the imprisonment to which he has been previously sentenced, but the court in its discretion based on settled principles may direct that the subsequent sentence shall run concurrently with previous sentence. While exercising such discretion, the trial court, appellate court or revisional court, as the case may be, keeps in mind several factors. While examining such factors, the possibility of some error cannot be ruled out. Not only the error, but absolutely non-consideration of the issue about invoking this discretion, may also be there and that may cause great injustice. In general, it can be said that every provision of law is meant to impart justice and to ensure fair and objective treatment with every subject, but while doing so, the chances of causing injustice or failure in extending complete justice cannot be denied. To meet such an eventuality the inherent powers like Section 482 Code of Criminal Procedure are meant and those are always open to be invoked to prevent abuse of process of court and secure the ends of justice. The inherent jurisdiction is having a very large amplitude but should always be exercised cautiously and only to prevent miscarriage of justice. While keeping in mind that the inherent powers must be exercised sparingly, the court should not restrain itself to invoke the same if any injury is caused to the justice.

We are of considered opinion that to meet the ends of justice and to rectify the gross error the powers under Section 482 Code of Criminal Procedure can be exercised, if court arrives at a conclusion that the trial court, appellate court or the revisional court, as the case may be, failed in completing the circuit of justice while invoking/not invoking the discretion vested with it as per Section 427 Code of Criminal Procedure.

The court while doing so must keep in mind all necessary ingredients and precedents which are to be taken into consideration to exercise the discretion as per Section 427 Code of Criminal Procedure. The reference made by learned Single Bench is answered accordingly. Let the Criminal Miscellaneous Petitions be listed before learned Single Bench for their adjudication on merits.?

Now in view of the decision rendered by this Court in Rajasthan & Ors. (supra), this petition is again considered

Arjun Ram vs. State of for deciding on merits.

The facts necessary for disposal of the present misc. petition are that the petitioner was tried, convicted and sentenced by the different trial courts for the offence punishable under section 138 of the N.I. Act, details of which have been given hereunder:

[CRLMP-947/2020]

S. No

Case No:

Court

Date of

Sentence +

Appeal

decision

Fine/compensat

ion

1.

39/2005

A.C.J.M ,

23.11.2011

1 year?s Simple

Chittorgarh

imprisonment

and to pay a fine

2.

127/2007

of Rs. 1,26,150/-

J.M. ,

24.11.2011

1 year Simple

Chittorgarh

imprisonment

and to pay a

compensation of

Rs. Rs 80,000/-

3.

85/2006

J.M. ,

15.11.2011

1 year Simple

Chittorgarh

imprisonment

and to pay a

compensation of

Rs. 3,00,000

4.

178/2005

J.M. ,

08.11.2011

1 year Simple

(378/04)

Chittorgarh

imprisonment

and to pay a

compensation of

Rs 2,00,000

5.

209/2005(re

J.M. ,

25.01.2012

1 year Simple

f. no.

Chittorgarh

imprisonment

210/2005 &

and to pay a

211/2005)

compensation of

6,60,000/-

6.

151/2005

J.M. ,

25.01.2012

1 year Simple

(ref No.

Chittorgarh

imprisonment

153/05 &

and to pay a

154/05)

compensation of

Rs. 4,90,000/- .

7.

328/06

A.C.J.M. ,

22.03.2012

1 year Simple

Chittorgarh

imprisonment

and to pay a fine

of Rs. 1,50,000/-

8.

327/06

A.C.J.M. ,

22.03.2012

1 year Simple

Chittorgarh

imprisonment

and to pay a fine

of Rs.

1,50,000/-

329/06

A.C.J.M. ,

22.03.2012

1 year Simple

Chittorgarh

imprisonment

9.

and to pay a fine

of Rs 2,00,000/-

10

246/06

A.C.J.M. 1st

04.01.2012

6 Months

.

Class ,

Simple

Chittorgarh

imprisonment

and to pay a fine

of Rs 50,000/-

out of which Rs.

40,000 was

ordered to be

given to

complainant.

11.

245/2006

A.C.J.M., 1st

04.01.2012

1 year Simple

class ,

imprisonment

Chittorgarh

and to pay a fine

of Rs. 1,50,000/-

out of which Rs.

1,40,000 was

ordered to be

given to

complainant.

12.

429/2006

J.M.,

03.02.2012

1 year Simple

Chittorgarh

imprisonment

and to pay a fine

13.

417/2006

of Rs. 50,000/-

J.M.

03.02.2012

1 year Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 50,000/-

14.

428/06

J.M.

03.02.2012

1 year Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 50,000/-

15.

307/2006

J.M.

03.02.2012

1 year Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 50,000/-

16.

418/2006

J.M.

03.02.2012

6 month Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 30,000/- .

17.

308/2006

J.M.

03.02.2012

6 month Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 20,000/- .

18.

456/2006

J.M.

25.01.2012

6 month Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 20,000/- .

19.

455/2006

J.M.

25.01.2012

1 year Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 80,000/- .

20.

398/2006

J.M.

25.01.2012

1 year Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 80,000/- .

21.

399/06

J.M.

25.01.2012

1 year Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 50,000/- .

22.

400/06

J.M.

25.01.2012

6 months Simple

chittorgarh

imprisonment

and to pay a fine

of Rs. 30,000/- .

23.

283/06

ACJM

20.10.2011

1 year Simple

Appeal

Chittorgarh

imprisonment

(46/2011)

and to pay a fine

dismissed &

of Rs. 1,60,000/-

order

.

confirmed

vide order

dated

04.01.2012

24.

198/2006

ACJM

21.09.2011

1 year Simple

Appeal(42/2

Chittorgarh

imprisonment

011)

and to pay a fine

dismissed &

of Rs. 3,50,000/-

order

confirmed

vide order

dated

04.01.2012


[CRLMP-947/2020]

25.

270/2006

ACJM No.1,

06.09.2011

6 months Simple

Appeal

Chittorgarh

imprisonment

(39/2011)

and to pay a fine

dismissed &

of Rs. 1,00,000/-

order

confirmed

vide order

dated

2 year Simple

04.01.2012

26.

362/2005

ACJM No.1,

05.09.2011

Appeal

Chittorgarh

imprisonment

(40/2011)

and to pay a fine

dismissed &

of Rs. 1,20,000/-

order

.

confirmed

vide order

dated

1 year Simple

04.01.2012

27.

231/2005

ACJM No.1,

05.09.2011

Appeal

Chittorgarh

imprisonment

(41/2011)

and to pay a fine

dismissed &

of Rs. 23,800/- .

order

confirmed

via order

dated

2 year Simple

04.01.2012

28.

225/2006

ACJM No.1,

05.11.2011

Appeal

Chittorgarh

imprisonment

(08/2012)

and to pay a fine

dismissed &

of Rs. 3,00,000/-

order

.

confirmed

vide order

dated

2 year Simple

06.06.2012

29.

226/2006

ACJM No.1,

05.11.2011

Appeal

Chittorgarh

imprisonment

(05/2012)

and to pay a fine

dismissed &

of Rs. 2,00,000/-

order

.

confirmed

vide order

dated

2 year Simple

06.06.2012

30.

227/2006

ACJM No.1,

05.11.2011

Appeal

Chittorgarh

imprisonment

(06/2012

and to pay a fine

dismissed &

of Rs. 3,00,000/-

order

confirmed

vide order

dated

2 year Simple

06.06.2012

31.

228/2006

ACJM No.1,

05.11.2011

Appeal

Chittorgarh

imprisonment

( 07/2012)

and to pay a fine

dismissed &

of Rs. 2,00,000/-

order

confirmed

vide order

dated

32.

482/2012

A.C.J.M.- 1,

07.01.2013

2 year Simple

06.06.2012

Chittorgarh

imprisonment

and to pay a fine

of Rs. 8,00,000/-

, in default of

payment of fine

(Downloaded on 23/01/2021 at 10:41:02 AM)

(7 of 10) [CRLMP-947/2020]

further to

undergo 6

months S.I.

As the sentences awarded to the petitioner are in 32 different cases, he is being made to suffer sentences one after another (consecutively), therefore, the present petition has been preferred by the petitioner with a prayer that a direction needs to be issued that the petitioner's sentences should run concurrently.

It is contended that the petitioner was doing business of cosmetics and for the purpose of running his business smoothly, he took loan from various persons, however, in the year 2004 due to unavoidable circumstances and financial constrains, the petitioner suffered huge losses resulting in complete ruin of his business and in those circumstances, the amount borrowed by him from the various persons could not be repaid.

It is also contended that the petitioner had issued several cheques to the persons from whom he borrowed money and when those cheques were presented in the bank, the same could not be honoured, resulting in filing of the complaints against the petitioner and thereafter the conviction of him for the offence punishable under section 138 of the N.I.Act.

It is argued that going by the sentence calculation, which has been awarded to the petitioner would effectively mean that the total length of sentences in aggregate would be around 35 years.

It is also argued that the petitioner is behind the bars since 26.05.2011 and till January 2017, he had served five years and eight months sentence out of total sentence of 35 years. It is further argued that though the petitioner was awarded those sentences in different cases but all the cases are of similar nature. It is also averred that the maximum sentence in respect of present kind of offence is two years simple imprisonment and if all the sentences are allowed to run consecutively petitioner would remain behind the bars up to year 2046.

Learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in State of Punjab vs. Madan Lal, AIR 2009 SC (Supp) 2836,

V.K.Bansal vs. State of Haryana & Ors., 2013 Cr.L.J. 3986, Shyam Pal vs. Dayawati Besoya & Anr., AIR 2016 SC 5021 and in Ammavasai & Anr. vs. Inspector of Police & Ors., AIR 2000 SC 3544.

Learned Public Prosecutor has opposed the prayer of the petitioner for concurrent running of all the sentences awarded to him in 32 different cases by the trial courts for the offence punishable under section 138 of the N.I. Act and prayed for dismissal of this criminal misc. petition.

It is noticed that almost all the complaints except one against the petitioner for commission of offence punishable under section 138 of N.I.Act were filed in the years from 2004 to 2007 and one complaint was filed in the year 2011. In all the complaints, similar nature of allegations levelled by the complainants are that the petitioner borrowed the money from them and gave cheques for repayment of the said money, however, on presentation of the said cheques in the bank, the same could not be realized for the reason that the account has been closed.

In all the 32 complaints filed against the petitioner, he has been convicted for the offence punishable under section 138 of the N.I. Act and different sentences have been awarded. The maximum sentence awarded to the petitioner is 2 years? simple imprisonment along with fine.


Section 427 CrPC is relevant in the context, which reads as under:

S. 427. Sentence on offender already sentenced for another offence.--

(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.?

As per sub-section (1) of section 427 CrPC when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

As per second proviso to sub-section (1) of section 427 CrPC where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

Sub-section (2) of section 427 CrPC provides that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

From the above, it can be gathered that the intention of legislature is that even the life convicts have been held entitled to benefit of subsequent sentence, being run concurrently, be it life term or of any lesser term then the different yardstick cannot be applied for those persons, who have been awarded sentence of lesser duration than life unless there are compelling reasons to do so. In this case, I do not see any compelling reason to order that all the sentences awarded to the petitioner in all 32 cases would run consecutively.

The substantive sentences awarded to the petitioner in all the 32 cases, if calculated jointly, is about 35 years. As per information supplied by the Deputy Superintendent, District Jail, Chittorgarh dated 09.08.2016 to one Navin Kabra son of Prahalad Rai Kabra, the petitioner is in jail from 26.05.2011 and has not been released for any period either on parole or interim bail. As such till January 2017, the petitioner served 5 years and 8 months sentence.

The Hon'ble Supreme Court in Ammavasai & Anr. vs. Inspector of Police & Ors. (supra) while taking into consideration the long duration of sentences awarded to the appellants in different criminal cases has created a via-media to meet the ends of justice while observing as under:


2. Appellants in this case are two. 1st appellant-Ammavasai was convicted in 4 different cases the occurrence in all of which took place between 27-3-1990 and 7-5-1990. The offence found against him in all the cases was under Section 395 of the Indian Penal Code and in each case he was sentenced to undergo rigorous imprisonment for 7 years. If he is not given the benefit in exercise of the discretion conferred under Section 427 of the Criminal Procedure Code, he may have to undergo a very long period of 28 years in jail.

3. The 2nd appellant-Deivaraj was convicted in 5 different cases the occurrence in all of which took place between 21-10-1989 and 7-5-1990. He was also found guilty under Section 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of 7 years in each case. If the benefit conferred under Section

427 is not extended to him, he may have to undergo imprisonment for a total period of 35 years in jail.

4. On the other hand, we allow the appellants to have the benefit of all the sentences to run concurrently, he would be out by now after serving only imprisonment for a period of 7 years awarded in one case. Both courses are unacceptable to us and, therefore, we thought of a via-media which would be consistent with the administration of criminal justice. After bestowing our anxious consideration we thought that if the appellants would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice.?

Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and the law laid down by the Hon'ble Supreme Court in State of Punjab vs. Madan Lal, V.K.Bansal vs. State of Haryana & Ors., Shyam Pal vs. Dayawati Besoya & Anr. and Ammavasai & Anr. vs. Inspector of Police & Ors. (supra), I am of the considered view that it would not be inconsistent with the administration of criminal justice if the petitioner is allowed the benefit of discretion contained in section 427 of the Code to meet the ends of justice. However, as per the law laid down by the Hon'ble Supreme Court in V.K.Bansal vs. State of Haryana & Ors. and Shyam Pal vs. Dayawati Besoya & Anr. (supra), the direction for concurrent running of sentences would be limited only to the substantive sentences alone.

In such circumstances, the present misc. petition is allowed and it is ordered that the substantive sentences awarded to the petitioner in the above referred 32 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively. Needless to say, if the petitioner pays the fine/compensation now, he is not required to undergo default sentences (sentences awarded by the trial courts in default of payment of fine/compensation).?

4. The present criminal misc. petition is accordingly allowed, in terms of the aforementioned judgment passed in S.B. Criminal

Revision Petition No.2883/2014 Rajender Kabra Vs. State of Rajasthan. Accordingly, the sentences passed vide impugned

judgments dated 05.03.2019 and 27.02.2019 passed by learned Special Judicial Magistrate (N.I. Act Cases) No.2, Bhilwara in Criminal Case No.2201/2017 and 849/2016 respectively are ordered to run concurrently.?

Since all the cases against the present petitioner pertains to Section 138 of Negotiable Instruments Act, therefore, the aforementioned precedent law is applicable in the present case as well.

The present criminal misc. petition is accordingly allowed, in terms of the aforementioned judgment passed in S.B. Criminal Revision Petition No.2883/2014 Rajender Kabra Vs. State

of Rajasthan. The sentence passed on 05.02.2016, 04.04.2016, 13.07.2016 and 29.05.2019 passed by learned ACJM/JM Court, Suratgarh in Criminal Case No.635/2012, 929/2012, 427/2012 and 767/2012 respectively, are ordered to run concurrently.

(DR.PUSHPENDRA SINGH BHATI),J.


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