Shafiq Ahmed vs State of M.P. and Another

N.K. Mody, J.—This is a petition u/s 427 read with Section 482, Criminal Procedure Code, wherein the prayer is that the sentence awarded to the petitioner in Cr.A.Nos. 167/07 and 168/07, decided on 22.01.2008 by XVIIIth Additional Sessions Judge, Indore whereby petitioner was convicted u/s 138 of Negotiable Instruments Act (which shall be referred hereinafter as ''an Act'') for a period of one year and fine of Rs.75,000/- and in default further conviction of three months, be directed to run concurrently.

Mr.M.S.Chouhan, learned Counsel for petitioner argued at length and submits that upon filing private complaints case was registered against the petitioner and petitioner was convicted u/s 138 of the Act for a period of one year with fine in each of the case. It is submitted that the conviction was maintained in Cr.A.Nos. 167/07 and 168/ 07 vide judgment dated 22.01.2008 by XVIII ASJ, Indore. It is submitted that the revision petition filed by the petitioner before this Court which was numbered as Cr.R.No.903/08 was dismissed vide judgment dated 23.09.2008. It is submitted that in both the cases the nature of offence was one and in both the cases the complainant was respondent No.2. It is submitted that since there were two cheques, therefore, the petitioner was prosecuted separately and the order of conviction was also passed separately. It is submitted that the petition filed by the petitioner be allowed.

Learned Counsel for respondent No. 1 submits that since the petitioner has not prayed that the conviction be directed to run concurrently at the time of trial and also in appeal, therefore, at this stage the petition filed by the petitioner is not maintainable and deserves to be dismissed. Learned Counsel placed reliance on a decision in the matter of Mr.Kudva v. State of Andhra Pradesh, reported in 2007(1) CCC 516 (S.C.) : 2007(1) Cri SO. It is submitted that petition filed by the petitioner be dismissed.

Section 427 of Criminal Procedure Code lays down that in a case where a person already undergoing sentence of imprisonment is sentenced on a subsequent, 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.

In the matter of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and another, , wherein Hon''ble Apex Court has held that where the accused was caught red handed in the first case under Gold (Control) Act and was awarded maximum sentence after pleading guilty and in the second case under the Customs Act was also awarded maximum sentence after pleading guilty which was to run consecutively, the accused was surely entitled to complain for giving the maximum sentence. It is no doubt true that the enormity of the crime committed by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo, if the sentences are to be consecutive. In the matter of Shersingh v. State of M.P., reported in 1989 MPLJ 116 (FB), wherein a Full Bench of this Court had a occasion to consider that whether a prayer u/s 427. Criminal Procedure Code can be exercised by this Court while exercising inherent jurisdiction u/s 482, Criminal Procedure Code and in case where accused was convicted for two distinct and separate offence and sentences passed by two different Courts it was held that High Court under exercise of its inherent jurisdiction is competent to issue such direction. It was further held that High Court has power in appropriate cases to entertain an application u/s 482 of the Code by invoking'' its inherent powers at any time subsequent to the decision in a given case even if the trial Court or the Appellate or Revisional Court has, failed to exercise its discretion u/s 427(1) of the Code: In the matter of Mohan Bhanudas Mohite Vs. State of Maharashtra, , wherein Bombay High Court in a case where accused was convicted and sentenced in Sessions case while he was undergoing sentence, he was convicted and sentenced in another Sessions case, it was held the order of Court to make two sentences to run concurrently is proper as the accused was convicted under NDPS Act and Section 32A of the Act prohibits suspension, remission or commutation of sentence. In the matter of Paramjeet Singh Vs. State of Rajasthan, , wherein in a case Where the accused was convicted in three different criminal cases u/s 379, Indian Penal Code it was held that the ends of justice would be met in directing substantive sentences for offence u/s 379. Indian Penal Code in the three criminal cases to run concurrently.

So far as the law laid down by the Hon''ble Apex Court in the matter of Mr.Kudva (supra), is concerned is quite distinguishable. In that case against the judgment of conviction which was maintained by the High Court SLP was filed before the Hon''ble Apex Court which was also dismissed and thereafter the application u/s 427, Criminal Procedure Code was filed and in that circumstances Hon''ble Supreme Court has observed that the application filed u/s 482 read with Section 427. Criminal Procedure Code after dismissal of SLP is not maintainable. In the present case, it is not the situation. No SLP has been filed, therefore, the law laid down by Hon''ble Apex Court in the matter of Mr.Kudva (supra) is not applicable to this case.

In the matter of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and another, , wherein Hon''ble Apex Court held as under:-

The basic rule of thumb over the years has been the so called transactions rule for concurrent sentences. If a given transaction constitutes 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 offence is not the same or the facts constituting the two offences are quite different.

In the matter of State of Punjab v. Madan Lal, passed in 2009(2) CCC 812 (S.C.) : Cr.A.No.529/04, decided on 5th March, 2009, in a case wherein the convictions were in terms of Section 138 of the Negotiable Instruments Act, 1881, the High Court noted that all the transactions related to the family of the respondent and the matter related to different cheques issued by the respondent to the complainant party. For this purpose separate complaints were filed. The High Court accordingly directed that the sentence imposed by learned Additional Sessions Judge and SDM Magistrate were to run concurrently was affirmed by the Hon''ble Apex Court.

In the present case, respondent No.2 initiated two criminal complaints u/s 138 of the Act against the petitioner and in both the cases the allegation was that the cheque of Rs.50.000/- in each of the case issued by the petitioner was dishonoured. Both the criminal cases were numbered as Cr.Case Nos.3539/07 and 3540/07 and both the cases were decided by the learned JMFC on 17.02.2007 and in both the cases the appeal filed were numbered as Cr.A.Nos. 167/07 and 168/07 and both the appeals were simultaneously decided vide judgment dated 22.12.2008. In the facts and circumstances of the case and also keeping in view the nature of offence and also the fact that in both the cases petitioner was prosecuted upon the complaint of respondent No.2, this Court is of the view that in the interest of justice it is necessary to direct that the sentence awarded in both the cases should run concurrently. In view of this petition filed by the petitioner is allowed and it is directed that the sentence awarded to the petitioner in Criminal Case Nos.3539/07 and 3540/07 by JMFC, Indore vide judgment dated 17.02.2007 whereby the petitioner was directed to be sentenced for a period of one year with fine, shall run concurrently.

With the aforesaid observations, petition stands disposed of.