Single-judge High Court ordered concurrent running of 32 substantive sentences for cheque dishonour offences under Section 138 NI Act and Section 482/427 CrPC, exempting default imprisonment for fine non-payment.
Direction to order concurrent running of substantive sentences in 32 cases while default sentences for non-payment of fine run consecutively.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc(Pet.) No. 7763/2022
Navratan S/o Shri Poonam Chand, Aged About 69 Years, R/o Behind Lali Bai Bagechi Near House Of Ramanji Nai And Jeevannath Bagechi Naya Sahar Bikaner (Lodged In Central Jail Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
| For Petitioner(s) | : Ms. RS Mertia for Mr. Laxmi Devi |
|---|---|
| For Respondent(s) | : Mr. AR Choudhary,PP |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
13/12/2022
preferred by the petitioner claiming the following relief:
present case is squarely covered by the decision rendered 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.
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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
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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 Arjun Ram vs. State of Rajasthan & Ors. (supra), this petition is again considered 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:
| S. No | Case No: | Court | Date of decision |
Sentence + Fine/compensat ion |
Appeal |
|---|---|---|---|---|---|
| 1. | 39/2005 | A.C.J.M , Chittorgarh |
23.11.2011 | 1 year’sSimple imprisonment and to pay a fine of Rs.1,26,150/- |
|
| 2. | 127/2007 | J.M. , Chittorgarh |
24.11.2011 | 1 yearSimple imprisonment and to pay a compensation of Rs.Rs 80,000/- |
|
| 3. | 85/2006 | J.M. , Chittorgarh |
15.11.2011 | 1 yearSimple imprisonment |
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| and to pay a compensation of Rs. 3,00,000 |
||||
|---|---|---|---|---|
| 4. | 178/2005 (378/04) |
J.M. , Chittorgarh |
08.11.2011 | 1 yearSimple imprisonment and to pay a compensation of Rs 2,00,000 |
| 5. | 209/2005(re f. no. 210/2005 & 211/2005) |
J.M. , Chittorgarh |
25.01.2012 | 1 yearSimple imprisonment and to pay a compensation of 6,60,000/- |
| 6. | 151/2005 (ref No. 153/05 & 154/05) |
J.M. , Chittorgarh |
25.01.2012 | 1 yearSimple imprisonment and to pay a compensation of Rs. 4,90,000/- . |
| 7. | 328/06 | A.C.J.M. , Chittorgarh |
22.03.2012 | 1 yearSimple imprisonment and to pay a fine of Rs.1,50,000/- |
| 8. | 327/06 | A.C.J.M. , Chittorgarh |
22.03.2012 | 1 yearSimple imprisonment and to pay a fine of Rs. 1,50,000/- |
| 9. | 329/06 | A.C.J.M. , Chittorgarh |
22.03.2012 | 1 yearSimple imprisonment and to pay a fine of Rs 2,00,000/- |
| 10 . |
246/06 | A.C.J.M. 1st Class , Chittorgarh |
04.01.2012 | 6 Months Simple imprisonment and to pay a fine of Rs50,000/- out of which Rs. 40,000 was ordered to be given to |
| complainant. | ||||
| 11. | 245/2006 | A.C.J.M., 1st class , Chittorgarh |
04.01.2012 | 1 yearSimple imprisonment and to pay a fine of Rs.1,50,000/- out of which Rs. 1,40,000 was ordered to be given to comlainant |
| 12. | 429/2006 | J.M., Chittorgarh |
03.02.2012 | p. 1 yearSimple imprisonment and to pay a fine of Rs50000/- |
| 13. | 417/2006 | J.M. chittorgarh |
03.02.2012 | ., 1 yearSimple imprisonment and to pay a fine of Rs.50000/- |
| 14. | 428/06 | J.M. chittorgarh |
03.02.2012 | , 1 yearSimple imprisonment and to pay a fine of Rs.50,000/- |
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| 15. | 307/2006 | J.M. chittorgarh |
03.02.2012 | 1 yearSimple imprisonment and to pay a fine of Rs.50,000/- |
|
|---|---|---|---|---|---|
| 16. | 418/2006 | J.M. chittorgarh |
03.02.2012 | 6 monthSimple imprisonment and to pay a fine of Rs.30,000/- . |
|
| 17. | 308/2006 | J.M. chittorgarh |
03.02.2012 | 6 monthSimple imprisonment and to pay a fine of Rs.20,000/- . |
|
| 18. | 456/2006 | J.M. chittorgarh |
25.01.2012 | 6 monthSimple imprisonment and to pay a fine of Rs.20,000/- . |
|
| 19. | 455/2006 | J.M. chittorgarh |
25.01.2012 | 1 yearSimple imprisonment and to pay a fine of Rs.80,000/- . |
|
| 20. | 398/2006 | J.M. chittorgarh |
25.01.2012 | 1 yearSimple imprisonment and to pay a fine of Rs.80,000/- . |
|
| 21. | 399/06 | J.M. chittorgarh |
25.01.2012 | 1 yearSimple imprisonment and to pay a fine of Rs_50000/- _ |
|
| 22. | 400/06 | J.M. chittorgarh |
25.01.2012 | ., . 6 monthsSimple imprisonment and to pay a fine of Rs.30,000/- . |
|
| 23. | 283/06 | ACJM Chittorgarh |
20.10.2011 | 1 yearSimple imprisonment and to pay a fine of Rs.1,60,000/- . |
Appeal (46/2011) dismissed & order confirmed vide order dated 04.01.2012 |
| 24. | 198/2006 | ACJM Chittorgarh |
21.09.2011 | 1 yearSimple imprisonment and to pay a fine of Rs.3,50,000/- |
Appeal(42/2 011) dismissed & order confirmed vide order dated 04012012 |
| 25. | 270/2006 | ACJM No.1, Chittorgarh |
06.09.2011 | 6 monthsSimple imprisonment and to pay a fine of Rs.1,00,000/- . |
.. Appeal (39/2011) dismissed & order confirmed vide order dated 04012012 |
| 26. | 362/2005 | ACJM No.1, Chittorgarh |
05.09.2011 | 2 yearSimple imprisonment and to pay a fine of Rs.1,20,000/- . |
.. Appeal (40/2011) dismissed & order confirmed vide order |
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| dated 04.01.2012 |
|||||
|---|---|---|---|---|---|
| 27. | 231/2005 | ACJM No.1, Chittorgarh |
05.09.2011 | 1 yearSimple imprisonment and to pay a fine of Rs.23,800/- . |
Appeal (41/2011) dismissed & order confirmed via order dated 04.01.2012 |
| 28. | 225/2006 | ACJM No.1, Chittorgarh |
05.11.2011 | 2 yearSimple imprisonment and to pay a fine of Rs.3,00,000/- . |
Appeal (08/2012) dismissed & order confirmed vide order dated 06.06.2012 |
| 29. | 226/2006 | ACJM No.1, Chittorgarh |
05.11.2011 | 2 yearSimple imprisonment and to pay a fine of Rs.2,00,000/- . |
Appeal (05/2012) dismissed & order confirmed vide order dated 06.06.2012 |
| 30. | 227/2006 | ACJM No.1, Chittorgarh |
05.11.2011 | 2 yearSimple imprisonment and to pay a fine of Rs.3,00,000/- |
Appeal (06/2012 dismissed & order confirmed vide order dated 06.06.2012 |
| 31. | 228/2006 | ACJM No.1, Chittorgarh |
05.11.2011 | 2 yearSimple imprisonment and to pay a fine of Rs.2,00,000/- |
Appeal ( 07/2012) dismissed & order confirmed vide order dated 06.06.2012 |
| 32. | 482/2012 | A.C.J.M.- 1, Chittorgarh |
07.01.2013 | 2 yearSimple imprisonment and to pay a fine of Rs.8,00,000/- , indefault of payment of fine further to undergo6 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
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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:
“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
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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 7-51990. He was also found guilty under Section 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a
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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).”
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Criminal Regular Case No.117/2021 (Appeal No.11/2021), 116/2021 (Appeal No.10/2021) & 115/2021 (Appeal No.12/2021) respectively are ordered to run concurrently.
(DR.PUSHPENDRA SINGH BHATI), J.
88-Sudheer/-
3 issues framed by the court
Whether the High Court can invoke Section 427 CrPC under its inherent powers under Section 482 CrPC to order concurrent execution of multiple imprisonment sentences for cheque dishonour cases.
Whether concurrent running of sentences applies to default sentences under Section 427 CrPC.
Whether sentencing should be concurrent or consecutive when multiple convictions result in an aggregate sentence of over 35 years.
Colour shows how this judgement treated each authority
Rajender Kabra vs. State of RajasthanApplied¶16
Rajender Kabra vs. State of Rajasthan
Arjun Ram vs. State of Rajasthan and Ors.Followed¶32
Arjun Ram vs. State of Rajasthan and Ors.
State of Punjab vs. Madan LalRelied on¶59
State of Punjab vs. Madan Lal, AIR 2009 SC (Supp) 2836 · Who else cites this
V.K.Bansal vs. State of Haryana & Ors.Followed¶83
V.K.Bansal vs. State of Haryana & Ors., 2013 Cr.L.J. 3986
Shyam Pal vs. Dayawati Besoya & Anr.Followed¶83
Shyam Pal vs. Dayawati Besoya & Anr., AIR 2016 SC 5021 · Who else cites this
Ammavasai & Anr. vs. Inspector of Police & Ors.Distinguished¶59
Ammavasai & Anr. vs. Inspector of Police & Ors., AIR 2000 SC 3544 · Who else cites this
3 provisions across 2 enactments
Navratan S/o Shri Poonam Chand
State Of Rajasthan
Puspendra Singh Bhati
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
