M/S M.M.Fabs And Tools vs Narasimha Murthy & Others

H.P. Sandesh, J

This petition is filed under Section 482 of Cr.P.C, praying this Court to pass an order holding that the order dated 27.11.2019 passed by this Hon'ble

Court in Crl.R.P.No.361/2019 C/w. Crl.R.P.No.363/2019 and the order dated 27.11.2019 passed in Crl.R.P.No.362/2019 shall run concurrently; to

direct respondent No.3 to release the petitioner in view of having served the sentence of one year as per the orders of this Hon'ble Court and to pass

such orders or directions as this Hon'ble Court deems just and proper in the facts and circumstances of the case.

The factual matrix of the case is that respondent No.1 had filed two complaints against this petitioner for the offence punishable under Section 138

of Negotiable Instruments Act (for short ‘the NI Act’) and the same were numbered as C.C.No.11268/2014 and C.C.No.11269/2014.

Respondent No.2, who is the wife of respondent No.1 also filed the complaint invoking Section 138 of NI Act. Learned Magistrate, after the trial,

considering the evidence in all the cases convicted and sentenced the accused for the offence punishable under Section 138 of NI Act and also in

default of payment of fine/compensation, sentenced to undergo imprisonment for a period of three months. The said orders have been challenged

before the Appellate Court and the Appellate Court allowed the appeal in part, wherein default sentence of three months imprisonment has been

imposed in all the three cases. Being aggrieved by the judgment passed by the First Appellate Court in Criminal Appeals, the petitioner had preferred

Criminal Revision Petition before this Court.

This Court, after hearing both the sides on the sentence to pay a fine/compensation amount, modified the sentence imposed by the earlier Courts

and directed in default of making the payment, to undergo imprisonment for a period of one year. However, two Revision Petitions were clubbed

together and another Revision Petition was disposed of independently. Learned Magistrate had issued two warrants against the petitioner herein and

the petitioner is serving the sentence ever since from the date of 24.09.2019 and the said sentence of imprisonment for a period of one year has come

to an end on 23.09.2020. However, the petitioner has not yet been released and he is still detained in the prison. Therefore, requested the jail

authorities to release the petitioner herein and the jail authorities have not released him. In view of the inaction of jail authorities, the present petition is

filed.

The main grounds urged in the petition is that the petitioner inspite of serving the sentence for a period of one year in view of the order passed by

this Court, the petitioner has been detained in the jail, which is erroneous, arbitrary and unconstitutional. In all the judgments and orders passed by the

learned Magistrate, there are no specific directions that the sentences shall run consecutively. In the absence of any specific directions and in view of

the order passed by this Court is silent and also the petitioner having already served the sentence of imprisonment for a period of one year, it is just

and necessary to hold the sentence passed against the petitioner to run concurrently.

Learned counsel brought to the notice of this Court the provisions of Section 427 (1) of Cr.P.C. and prayed the Court to hold the sentence as

concurrent. Learned counsel also relied upon the judgment in the case of V.K.Bansal v. State of Haryana and Another reported in (2013) 7 SCC

Referring to this judgment, learned counsel would contend that the sentence so imposed on the petitioner ought to have been made as

concurrent.

Per contra, learned counsel appearing for the respondents No.1 and 2 would vehemently contend that the cheques were issued in respect of

different transactions. However, three criminal cases are filed against the petitioner. In all total 10 cheques were issued, for six cheques, 2 cases are

filed against the petitioner. In respect of other four cheques, separate criminal cases are filed. Learned counsel would vehemently contend that the

transactions are not single transaction but different transactions and the complainants are also different. Hence, the judgment of the Apex Court

referred by the learned counsel for the petitioner is not applicable to the case on hand.

Learned counsel also brought to the notice of this Court that in the judgment of the Apex Court, it is also clear that in case of default sentence, the

same cannot be made as concurrent as contended by the learned counsel for the petitioner.

The learned High Court Government Pleader for the State would submit that in case of default sentences, there cannot be any order for making the

sentence as concurrent sentence and the same should be consecutive. Learned HCGP would vehemently contend that the jailor’s report is also

received and when the default sentence has been passed against the petitioner, the question of making the same as concurrent sentence cannot be

accepted as contended by the learned counsel for the petitioner.

Having heard the learned counsel for the respective parties and also on perusal of the records, it is not in dispute that total 10 cheques were issued

by the petitioner and in respect of 6 cheques, two criminal cases are registered. It is also not in dispute that in two cases the complainants are

different. No doubt, there is no dispute that both these complainants are husband and wife. Having perused the order passed by this Court,

Crl.R.P.No.361/2019 connected with Crl.R.P.No.363/2019 were considered together since in both the matters complainant is one and the same. This

Court also while considering the matter on merit in para No.17 directed to make the payment as compensation. It is also observed that if the said

amount is not paid within two months from the date of the order, it carries an interest at the rate of 9% per annum for the delayed period. The order is

also very clear that in default, he has to undergo imprisonment for a period of one year. In Crl.R.P.No.362/2019 filed by the petitioner, who is a

different complainant had approached this Court questioning the sentence imposed by the learned Magistrate and in the said order at para No.17, this

Court directed to pay the compensation amount and if the said amount is not paid within two months, it carries interest at the rate of 9% per annum. It

is further ordered that, in default to make the payment, he shall undergo imprisonment for a period of one year.

Having perused both the orders, the default sentence is for a period of one year. Learned counsel appearing for the petitioner would vehemently

contend that both these sentences should have run concurrently. The Apex Court in V.K.Bansal’s case discussed with regard to Section 427(1) of

Cr.P.C. which stipulates the discretionary power of the Court to direct sentence to run concurrently and also discussed with regard to when it should

be exercised. It is further held that no straight jacket approach can be laid down. However, only substantive sentence can be directed to run

concurrently and sentence awarded in default of payment of fine/compensation cannot be directed to run concurrently.

Learned counsel appearing for the petitioner though relied upon this judgment, failed to take note of the fact that the Apex Court categorically held

that sentences awarded in default of payment of fine/compensation cannot be directed to run concurrently. In the case on hand, it is not in dispute that

the petitioner has not paid the amount as directed by this Court but he has committed a default in payment of fine amount. When such being the case,

the sentence awarded in default of payment of fine/compensation cannot be directed to run concurrently.

This Court would like to extract para No.18 of the judgment of the Apex Court, wherein the Apex Court had discussed in detail regarding the

sentences awarded in default of payment of fine/compensation, and held that Section 427 of Cr.P.C permits a direction for concurrent running of the

substantive sentences with sentences awarded in default of payment of fine/compensation, which reads as hereunder:-

Applying the principle of single transaction referred to above to the above fact situations we are of the view that each one of the loan

transactions/financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing

company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing

company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for

concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the

substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run

concurrently. We, however, see no reason to extend that concession to transactions in which the borrowing company is different no matter

the appellant before us is the promoter/Director of the said other companies also. Similarly, we see no reason to direct running of the

sentence concurrently in the case filed by State Bank of Patiala against M/s Sabhyata Plastics and M/s Rahul Plastics which transaction is

also independent of any loan or financial assistance between the State Financial Corporation and the borrowing companies. We make it

clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the

appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. We do so because

the provisions of Section 427 CrPC do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with

sentences awarded in default of payment of fine/compensation.

Having perused the principles laid down in the judgment and also in the case on hand, the petitioner has not paid the amount and he has committed

a default of payment of fine/compensation amount, the Apex Court held that Section 427 of Cr.P.C. do not permit to issue a direction for the

concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation and hence, this Court is of the

view that the sentences passed by this Court cannot be directed to run as concurrently as the petitioner has been awarded default sentence and hence,

I do not find any error committed by the learned Magistrate or jail authorities in not considering the request of the petitioner herein as contended in the

petition.

In view of the discussions made above, I pass the following:

ORDER

The petition is hereby rejected.