Dushyant Kumar Vs State of Hp and Others

For the Petitioner : Mr. Devinder K. Sharma, Advocate, vice Mr. C.N. Singh, Advocate. For the Respondents/State: Mr. Lokender Kutlehria, Additional Advocate General.

¶10

Rakesh Kainthla, Judge

¶11

The petitioner has filed the present petition for issuance of an appropriate order or directions to the respondents that the sentence awarded to the petitioner in different cases under Section 138 of the Negotiable Instruments Act (“in short NI Act) be ordered to run concurrently. It has been asserted that the petitioner was facing the trials in different cases registered against him under

¶12

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

¶13

2

¶14

( 2025:HHC:13306 )

¶15

Section 138 of the N.I. Act, in the Court of learned Judicial Magistrate, Karsog, District Mandi (H.P) and in the Court of learned Chief Judicial Magistrate, Shimla (H.P), respectively and after conclusion of the trial, the petitioner was convicted by the respective Courts. The details of the cases are as under: -

¶16

Sr. No.	Case Nos & Title	Sentence imp Courts/dated	osed by the Respective
01.	Case No.70/2021 title Uttam Singh Vs. Dushyant Kumar	Two months' and compens ₹3,25,000/- 26.072023.	simple imprisonment ation to the tune of (JMIC) (Karsog) dated
02.	Case No.68/2022 Title Dola Ram Vs. Dushyant Kumar.	Two months' and compens ₹2,10,000/- 04.01.2024.	simple imprisonment ation to the tune of (JMIC) (Karsog) dated
03.	Case No.44/2021 Title Nand Lal Vs. Dushyant Kumar.	Six months' and compens ₹41,50,000/- 04.01.2024.	simple imprisonment ation to the tune of (JMIC) Karsog dated
04.	Case No.104/2022 Title Joginder Pal Vs. Dushyant Kumar.	Three months and compens ₹6,00,000/- 20.07.2024.	' simple imprisonment ation to the tune of (JMIC) (Karsog) dated
05.	Case No.104/2020 Title Jagat Ram Vs. Dushyant Kumar.	Two months' and compens ₹3,70,000/- 19.06.2024.	simple imprisonment ation to the tune of (JMIC) (Karsog) dated
06.	Case No. 49/2021 Title Gursaran Pal Vs. Kirna Kothi Company through its proprietor, Dushyant Kumar.	One year's si compensation ₹15,00,000/- 04.04.2024.	mple imprisonment and to the tune of (CJM), Shimla dated
07.	Case No.104/2021 Title Kishore Kumar	Six months' and compens	simple imprisonment ation to the tune of

¶17

3

¶18

( 2025:HHC:13306 )

¶19

Sr. No.	Case Nos & Title	Sentence imposed by the Respective Courts/dated
	Vs. M/s. Jai Kirna Kothi Fruit Company through its Proprietor, Dushyant Kumar.	₹5,50,000/-. In case of default, two months simple imprisonment (JMIC) (Shimla) dated 08.08.2024.

¶20

The petitioner did not assail the judgments passed by different Courts, and they have attained finality. The petitioner has completed the sentence mentioned in the above table in Serial Nos 1, 2, 4 & 5, and the remaining sentence as imposed by the Court below is required to be completed as per the warrant of imprisonment issued by the concerned Court. The petitioner was in the business of transportation, sale and purchase of Anardana. He could not pay the money because he did not receive it from the buyers/traders. The indefinite incarceration of the petitioner would minimise his chances of earning money. Therefore, it was prayed that the present petition be allowed and the sentences of imprisonment awarded by different Courts be ordered to run concurrently.

¶21

The State has opposed the present petition by filing a reply asserting that the sentences are to be executed as per the warrant issued by the competent Court of law. The petitioner was convicted by different Courts in seven different cases. The

¶22

4

¶23

( 2025:HHC:13306 )

¶24

petitioner has completed the sentence in cases mentioned at Serial Nos. 1 and 2, and he is undergoing the sentence mentioned at Serial No.3. The sentences in the other cases will commence after the completion of the sentence in the earlier case.

¶25

I have heard Mr. Devinder K. Sharma, learned vice counsel representing the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondents-State.

¶26

Mr. Devinder K. Sharma, learned vice counsel for the petitioner, submitted that the Court has power under Section 482 of Cr. P.C. to order that the sentences imposed by the Courts in different cases be ordered to run concurrently. The Court had already ordered the concurrent running of the sentences in Cr.MMO No.113 of 2023 titled Mohar Singh Vs. State of Himachal Pradesh decided on 02.11.2023 & Cr.MMO No.107 of 2024, titled Laxman Dass Vs. State of Himachal Pradesh & Anr., decided on 06.09.2024. Hence, he prayed that the present petition be allowed and the various sentences be ordered to run concurrently.

¶27

Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that this Court has already held in Cr. MMO No. 1268 of 2023 titled Balbir Chand Vs. State

¶28

5

¶29

( 2025:HHC:13306 )

¶30

of Himachal Pradesh & Ors., decided on 21.08.2024, that the sentences awarded in different cases pertaining to different transactions having taken place at different places cannot be ordered to run concurrently. The petition is misconceived, and he prayed that the present petition be dismissed.

¶31

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

¶32

It was laid down by the Division Bench of this Court in Sushil Kumar @ Shashi versus State of Himachal Pradesh, 2014 (1) Shimla Law Cases 214 that when a person was convicted for the commission of two offences in separate trials in respect of different transactions, the Court cannot pass a direction that sentences should run concurrently. It was observed:

¶33

“12. Their Lordships of the Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad and another, [(1988) 4 SCC 183] , while taking note of Section 427 of the Code of Criminal Procedure observed that the crime committed by the accused is relevant for measuring the sentence, but the maximum sentence awarded in one case against the same accused should also be kept in mind while awarding 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. The totality principle has been accepted as a

¶34

6

¶35

( 2025:HHC:13306 )

¶36

correct principle for guidance. In para 10, the Supreme Court observed as under:

¶37

"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."

¶38

In M.R. Kudva v. State of A.P., [(2007) 2 SCC 772] , the Supreme Court while taking note of Section 427 of the Code of Criminal Procedure held that when the provision of this Section is not involved in the original cases or appeals such an application/petition thereafter is not maintainable and the High Court has no jurisdiction to entertain such a request. The said provision cannot be applied in a separate and independent proceeding. The reliance can also be placed on another judgment of the Supreme Court in State of Punjab v. Madan Lal, [(2009) 5 SCC 238] wherein the majority view in State of Maharashtra v. Najakat, [(2001) 6 SCC 311] has been relied upon.

¶39

In the instant case, petitioner Sushil Kumar was convicted for two offences in separate trials for attempted murder of a person and murdering another person at two different times. Both these transactions were different in time and separate, and were also not interconnected with each other. Therefore, we are of the opinion that this Court cannot interfere with the sentences passed in two separate cases, tried and decided separately under its inherent jurisdiction, therefore, the petition is dismissed.”

¶40

This judgment was noticed in Balbir Chand (supra).

9.

7

( 2025:HHC:13306 )

It was submitted that the matter is required to be referred to the Larger Bench in view of the different interpretation given by Coordinate Benches in Mohar Singh (supra) and Laxman Das (supra). This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673: 2005 SCC (Cri) 546: 2005 SCC (L&S) 246: 2004 SCC OnLine SC 1642 that a Bench of lesser quorum cannot disagree or dissent from the views taken by a Bench of larger quorum and in case of doubt it can invite the attention of the Hon’ble the Chief Justice. It was observed at page 682:

¶45

12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:

¶46

( 1 ) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. ( 2 ) [ Ed. : Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3-3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt, all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration.

¶47

8

¶48

( 2025:HHC:13306 )

¶49

It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

¶50

( 3 ) [ Ed. : Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17-1-2005.] The above rules are subject to two exceptions: ( i ) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and ( ii ) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273 ].

¶51

It was laid down by Hon’ble Supreme Court in Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1 , that a Smaller Bench is bound by the decision of the Larger Bench and if the Smaller Bench thinks that judgments of Larger Bench is so incorrect that it cannot be followed in any circumstance, only then the matter can be referred to a Larger Bench. It was observed: -

¶52

9

¶53

( 2025:HHC:13306 )

¶54

“5. The learned Attorney-General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges — a proposition that learned counsel for the appellants did not dispute. The learned Attorney-General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India [(1992) 4 SCC 97] where it has been said that “no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench” (SCC p. 98, para 5). The learned Attorney-General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar [1991 Supp (2) SCC 516: 1992 SCC (L&S) 177: (1992) 19 ATC 236: 1990 Supp (2) SCR 644] was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar [1991 Supp (2) SCC 516: 1992 SCC (L&S) 177: (1992) 19 ATC 236: 1990 Supp (2) SCR 644], could have referred the case to a Bench of five learned Judges.

¶55

In the present case, the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demand that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances, can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.”

¶56

10

¶57

( 2025:HHC:13306 )

¶58

Therefore, this Court is bound by the decision of the Division Bench of this Court, and a reference can only be made to a Larger Bench if the decision is so incorrect that it cannot be followed in any circumstance. There is no such reason, and this Court itself has followed the decision of the Division Bench and Coordinate Benches of this Court as well as the judgments of the Hon’ble Supreme Court in Balbir Chand (supra) to hold that the benefit cannot be claimed in respect of different transactions. Hence, the prayer made on behalf of the petitioner that the matter be referred to a Larger Bench cannot be accepted.

¶59

In the present case, the petition itself mentioned that the petitioner was convicted in separate cases regarding different cheques and by different Courts. Therefore, sentences cannot be ordered to run concurrently as per the judgment in Balbir Chand (supra). Hence, the present petition fails, and the same is dismissed.

¶60

( Rakesh Kainthla) Judge

¶61

09^th May, 2025 (Shamsh Tabrez)

Dushyant Kumar v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

Dushyant Kumar v. State of Hp and Others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Hukam Ram Vs State of Hp

Vikesh Kumar Vs State of Hp

Rajinder Singh Vs State of Hp

Prakash Vs State of Hp and Anr.

Satish Kumar and Ors. Vs State of Hp

Sunil Kumar Vs State of Hp