Whether the court can impose concurrent sentence on accused in cheque dishonour case if cases arise out of different Transactions?

 We have perused the ratio in the aforesaid judgment and find that only when the conviction arise out of the single transaction, concurrent sentence would be merited. But present are the cases where there were several transactions over a period of time pertaining to supply of raw material to the petitioner for which the cheques tendered towards payment, were dishonoured. Accordingly, we find that the petitioner can have no benefit out of the ratio in V.K. Bansal (supra).

IN THE SUPREME COURT OF INDIA

Petition(s) for Special Leave to Appeal (Crl.) No(s). 6742/2023; 

K. PADAMAJA RANI Vs THE STATE OF TELANGANA & ANR.

Author: HRISHIKESH ROY; J., PANKAJ MITHAL; J.

Dated: 28-07-2023

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Whether court can direct that default sentences can run concurrently?

 In terms of the decision taken by this Court in Sharad Hiru

Kilambe, the default sentence cannot be directed to run

concurrently. The discussion in that behalf is to be found in

paragraphs 17 and 18 of said decision which for facility are quoted

hereunder:

“17. In the circumstances, we reject the

submission regarding concurrent running of

default sentences, as in our considered view

default sentences, inter se, cannot be directed

to run concurrently.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.818-820 OF 2021

DUMYA ALIAS LAKHAN ALIAS INAMDAR Vs  STATE OF MAHARASHTRA

Dated: AUGUST 13, 2021.

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Kerala HC: Direction to run sentence concurrently in a criminal case can be given only by the Court imposing the subsequent sentence of imprisonment

“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.

…..............................................”

In order to attract the application of Section 427 of the Code, the

following conditions have to be satisfied:

1. A person already undergoing sentence of

imprisonment stands convicted;

2. While undergoing such sentence such a person is

subsequently convicted and awarded the sentence of

imprisonment including imprisonment for life;

3. Such imprisonment of rigorous imprisonment for

life shall commence at the expiration of the

imprisonment to which he has been previously

sentenced; and,

4. The court directs that subsequent sentence shall run

concurrently with such previous sentence.

12. In other words, in order to attract Section 427(1) of the

Code, when a person already undergoing the sentence of

imprisonment is sentenced on a subsequent conviction to

imprisonment or imprisonment for life, then the second sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that a subsequent sentence shall run concurrently with such previous sentence.

14. It is also trite that the benefit under Section 427 of the

Code can be conferred only by the court dealing with the subsequent

case. It has also been held that the basic rule of thumb over the years

has been the so-called single transaction rule for concurrent

sentences. The Hon'ble Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs

(Prevention) Ahmedabad & Ors. (AIR 1988 SC 2143) held that

Section 427 of the Code relates to administration of criminal justice

and provides procedure for sentencing. The sentencing court is,

therefore, required to consider and make an appropriate order as to how the sentence passed in subsequent case is to run. It is also apposite to quote the following passage from the judgment:

“10. The basic rule of thumb over the years has been the

so-called single transaction rule for concurrent sentences.

If a given transaction constitutes two offences under

enactments generally, it is wrong to have consecutive

sentences. It is proper and legitimate to have concurrent

sentences. But this rule has no application if the

transaction relating to offences is not the same or the facts

constituting the two offences are quite different.”

15. That means, whether the sentences shall run concurrently

or consecutively can be decided only by the court deciding the latter case and not the former. 

18. Moreover, as the very provision suggests, the rule is

always that the sentences should run one after the other and the rule of concurrency is the exception. As held by the Apex Court, the benefit under Section 427 cannot be conferred for transactions which are unrelated. In such cases, the sentences should run consecutively.

20. To sum up, granting of prayer for concurrency depends on

facts and circumstances of each case and the benefit under Section 427 of the Code can be claimed only before the Court trying the subsequent offences. Direction to run concurrently can be given only in appropriate cases by the Court imposing subsequent sentence of imprisonment; the appellate court dealing with subsequent conviction also can exercise the jurisdiction.  To put it in other words,seeking such a relief from the court dealing with the first  conviction is totally out of place.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE K.HARIPAL

Dated: 10TH DAY OF JULY 2020 

CRL.A.No. 992 OF 2013

MUSHTHAFA  MUHAMMED, Vs THE SUB INSPECTOR OF POLICE

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Whether court can direct different sentences passed in different cases to run concurrently?

In the instant case, the learned Magistrate has not at all considered the exercise of his power under Section 427(1) even though, as already observed by us, the facts and circumstances of the case required him to do so. To aggravate the situation, the learned Additional Sessions Judge observed that there was no provision in the Code of Criminal Procedure permitting different sentences passed in different cases to run concurrently. This only shows non-application of mind as well as ignorance of law on the part of both the Courts below which has resulted in committing of a grave error of law writ large on the face of the record further leading to miscarriage of justice in the present case. That also shows failure to perform a public duty.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 1437 of 2013

Decided On: 22.07.2013

Abidkhan  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari and S.B. Shukre, JJ.

 Citation: 2014 ALL Mr. (Cri.) 1719

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Bombay high court Guidelines to judicial officers regarding sentencing of accused convicted in other offences

It is true that Bhandara Court and Tumsar may or may not be aware of cases pending in two different Courts. But, it is certain that both these Courts are fully aware of cases dealt with by them. Can we say that these two courts are unaware about legal provisions contained in section 427 of Cr.P.C. These two Courts have not given them the benefit of concurrent theory of sentences. These two Courts are fully aware about the provisions of Probation of Offenders Act and they have denied the benefit to the petitioners.

16. Ultimately, the Judicial Officers dealing with the case is also having human element on it. So, while convicting the petitioners, they must be having "repetitive tendency of these petitioners while committing these offences" in their mind. They were fully justified in denying them benefits of concurrent theory. The theory of deterrence must have weighed with their mind. But what we feel is that the trial Courts are unaware of these provisions of law. We say so because there is no discussion on this issue. Judge may consciously deny benefit. But, it must be reflected from the judgment. In case of Abidkhan, there was direction to place the matter before Registrar General. In order to sensitize the Judges in the State of Maharashtra, we feel some more needs to be done. Hence, we intend to direct the Registrar (Judicial) to circulate this judgment amongst all Judges in State of Maharashtra. We hope the Judges of trial Court and the appellate Court will consider the provisions of Section 427 of Cr.P.C. while dealing with the issue of sentence. Ultimately, it is the discretion of the concerned Judge whether to grant him benefit or not. It depends upon facts of each case. But it should not happen that due to ignorance of this provision of law, a rightful convict may be denied benefit of this provision of law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 1036 of 2018

Decided On: 15.02.2019

Akash Rashtrapal Deshpande  Vs. State of Maharashtra 

Hon'ble Judges/Coram:

S.B. Shukre and S.M. Modak, JJ.

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Whether Default Sentences, Inter Se, Can Be Directed To Run Concurrently?

 The principle laid down by the Hon’ble Apex
Court in the decisions cited supra makes it crystal clear that
imposition of the term of imprisonment in default of payment
of fine is not a sentence and it is a penalty which a person
incurs on account of non-payment of fine. It is also made clear
that if such default sentence is imposed, undoubtedly, an
offender must undergo unless it is modified or varied in part or
whole in the judicial proceedings. Therefore, there is no power
for the Court to order the default sentences to run concurrently.
The Hon’ble Apex Court also made it clear that when such a
default sentence is imposed, a person is required to undergo
imprisonment either because he is unable to pay the amount of
fine or refuses to pay such amount.”
The conclusion regarding concurrent running of default sentence was
as under:
“18. It is relevant to state that there are provisions under
the code, as pointed out earlier, to order the substantive
sentences to run concurrently and the legislature specifically
excluded such power to the Court in respect of ordering the
default sentences to run concurrently. The Court cannot add or
substitute any additional words to any particular provision of
the Code. It is not for the Court to take up the work of
legislation and the Court can only apply the provision contained
under the Code as it is. It is well-settled in a catena of decisions
that the term of imprisonment in default of payment of fine
cannot be deemed to be a sentence, but a penalty which is
incurred on account of non-payment of fine.”
15. In the circumstances, we reject the submission regarding concurrent
running of default sentences, as in our considered view default sentences,
inter se, cannot be directed to run concurrently. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2018

(Diary No.33034 of 2017)

Sharad Hiru Kolambe Vs State of Maharashtra 

Dated:September 20, 2018
Uday Umesh Lalit, J.
Citation:AIR 2018 SC 4595,(2018)18 SCC 718

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When court should direct that subsequent sentence shall run concurrently with previous sentences?

The law on the orientation of two sentences awarded to an offender following his conviction successively, to define the cumulative duration thereof is envisaged in Section 427 of the Code of Criminal Procedure, 1973 (for short "Code") in following terms:

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.

13. Though this provision has fallen for scrutiny of this Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal v. State of Haryana and Anr. MANU/SC/0673/2013 : (2013) 7 SCC 211 where it was held that though it is manifest from Section 427(1), that the Court has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same.

14. The imperative essentiality of a single transaction as the decisive factor to enable the Court to direct the subsequent sentence to run concurrently with the previous one was thus underscored. It was expounded as well that the direction for concurrent running of sentence would be limited to the substantive sentence alone.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 988-989 of 2016 (Arising out of S.L.P. (Crl.) Nos. 6226-27 of 2016)

Decided On: 28.10.2016

 Shyam Pal Vs. Dayawati Besoya and Ors.

Hon'ble Judges/Coram:

Dipak Misra and Amitava Roy, JJ.
Citation:(2016) 10 SCC 761

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Whether sentences can run concurrently if conviction relates to two different transactions?

The above general rule that there cannot be concurrency of sentence if conviction relates to two different transactions, can be changed by an order of the Court. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1) Cr.P.C. Depending on the special and peculiar facts and circumstances of the case, it is for the court to make the sentence of imprisonment in the subsequent trial run concurrently with the sentence in the previous one. In Benson v. State of Kerala (2016) 10 SCC 307, this Court directed the substantive sentences imposed on the appellant to run concurrently. In V.K. Bansal v. State of Haryana (2013) 7 SCC 211, some sentences were to run concurrently and some consecutively. In paras (14) and (16) in V.K. Bansal’s case, it was held as under:-

“14. We may at this stage refer to the decision of this Court in Mohd. Akhtar Hussain v. Collector of Customs (1988) 4 SCC 183 in which this Court recognised the basic rule of convictions arising out of a single transaction justifying concurrent running of the sentences. The following passage is in this regard apposite: (SCC p. 187, para 10)  CA NO.253 OF 2017 “10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.”

16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor.”

69. This instant case is one covered under Section 427 Cr.P.C. As noted earlier appellant Neera Yadav has been convicted in two different cases, one of abusing the official position in getting the plots allotted to herself and her daughters and other irregularities in making changes in the site plan and another one in abusing her position as CEO, Noida conspired with Rajiv Kumar in allotting plot to him. Having regard to the facts and circumstances of the case and considering the nature of allegations, in our view, it is not justifiable to direct concurrency of sentence. Any unprincipled exercise of judicial discretion and casual direction made regarding concurrency would go against the express provisions of the Prevention of Corruption Act, 1988 and the Criminal Procedure Code.

Supreme Court of India

Neera Yadav vs Central Bureau Of Investigation on 2 August, 2017

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Whether court can pass concurrent sentences if separate prosecutions are instituted relating same transaction?

Learned counsel for the appellant submits that the allegations for misappropriation were for one transaction, in a 3 block period, for a quantified sum. The appellant will have to undergo the sentences consecutively for each conviction, after the earlier sentence in a case exhausted itself. The appellant is 68 years old. Reference was made to Section 427(1) Cr.P.C. and Shyam Pal (supra) to contend that the sentences awarded individually ought to be directed to run concurrently.

7. Learned counsel for the respondent, referring to Section 31 Cr.P.C. submits that each case was a separate prosecution, relating to a different time period, and for a different sum. It is only in a case where a person is tried in respect of two or more offences in a single transaction, that the sentence can be directed to run concurrently.

8. We have considered the respective submissions, and are of the opinion, that essentially the allegations constituted a single transaction, between the same parties for a block period, split up by the prosecution, presumably for its convenience, into three different cases. The evidence also was 4 common, and so is the conviction. Section 427(1), Cr.P.C. stipulates that where a person undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, it shall commence at the expiration of the imprisonment previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence. The jurisdiction being discretionary must be exercised on fair and just principles in the facts of a case.

9. We do not consider it necessary to further elucidate or enter into an exposition of the law, in view of the precedents noticed above. Suffice it to observe that in the facts of the case, the exercise of discretion under Section 427(1) Code of Criminal Procedure, mandates that the substantive sentences imposed upon the appellant in the three separate prosecutions, are directed to run concurrently, except the default sentence, if the fine by way of compensation as imposed has not been paid by him.

SUPREME COURT OF INDIA

P.N. Mohanan Nair Vs. State of Kerala

Criminal Appeal Nos. 1102-1104 of 2017

O R D E R

NAVIN SINHA, J.

Ranjan Gogoi) J

Dated: 11July2017

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Whether sentence imposed on accused undergoing life imprisonment shall run concurrently?

It is undisputed that on 6th February, 2010 when the judgment
is delivered in four cases in which the appellant is tried, the appellant was
undergoing life imprisonment as per the judgment delivered in Sessions Trial
No. 199 of 1998 and maintained by this Court in Criminal Appeal No. 89 of
2003. Considering the provisions of Section 427(2) of the Code of Criminal
Procedure  and the proposition laid down in the judgment given in the case
of  Rambhau Pandurang Wankhade, I am of the view that the appellant is
entitled for the benefit of Section 427(2) of the Code of Criminal Procedure.

The learned Additional Sessions Judge has committed an error by not giving
benefit of Section 427(2) of the Code of Criminal Procedure to the appellant accused.
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 355  OF 2010

Mahendra S/o. Digamber Deshmukh,

  V
 State of Maharashtra, 

              CORAM : Z.A.HAQ, J.
              DATED   : APRIL 05, 2016.
Citation:2016 ALLMR(CRI)4748

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When court should not order that sentences shall run consecutively relying on single transaction rule?

The basic rule of thumb over the years has been the so called single transation rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. In this appeal, the primary challenge to the sentence is based on assumption that the two cases against the appellant, under the Gold (Control) Act, and the Customs Act pertain to the same subject matter. It is alleged that the appellant was prosecuted under the two enactments in respect of seizure of 7,000 tolas of gold. On this basis, reference is also made to Section 428 Cr. P.C. claiming set off in regard to the period of imprisonment already undergone by the appellant.

The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold (Control) Act, but it is evidently on different transactions. The complaint under the Gold (Control) Act relates to possession of 7,000 tolas of PG NO 752 primary gold prohibited under s. 8 of the said Act. The complaint under the Customs Act is with regard to smuggling of Gold Worth Rs. 12.5 crores and export of silver worth Rs.

11. 5 crores. On these facts, the Courts are not unjustified in directing that the sentences could be consecutive and not concurrent.

Supreme Court of India

Mohd. Akhtar Hussain Alias ... vs Assistant Collector Of Customs ... on 31 August, 1988

Equivalent citations: 1988 AIR 2143, 1988 SCR Supl. (2) 747

BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)

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What is basic concept of single transaction rule for concurrent sentences?

“The basic rule of thumb over the years has been
the so called single transaction rule for concurrent
sentences. If a given transaction constitutes two
offences under two enactments generally, it is
wrong to have consecutive sentences. It is proper
and legitimate to have concurrent sentences. But
this rule has no application if the transaction relating
to offences is not the same or the facts constituting
the two offences are quite different.”1
In conclusion, we may say that the legal position
favours exercise of discretion to the benefit of the prisoner in
cases where the prosecution is based on a single transaction
no matter different complaints in relation thereto may have
been filed as is the position in cases involving dishonour of
cheques issued by the borrower towards repayment of a loan
to the creditor.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

V.K. Bansal
Versus
State of Haryana and Ors.
Decided on;July 5, 2013

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