Madhya Pradesh High Court
Nasir Mohammad@ Nasir Rajpur vs The State Of Madhya Pradesh on 2 September, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No. 9192 of 2023
NASIR MOHAMMAD @ NASIR RAJPUT
Versus
THE STATE OF MADHYA PRADESH
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Appearance
Shri Pradeep Kumar Naveria - Advocate for the appellant.
Shri Ravendra Shukla - Deputy Government Advocate for the respondent/State.
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Reserved on : 21.08.2024
Pronounced on : 02.09.2024
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This criminal appeal having been heard and reserved for judgment,
coming on for pronouncement this day, Justice Achal Kumar Paliwal
pronounced the following:
JUDGMENT
Appellant has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (In short " Cr.P.C.) against the judgment dated 28.06.2023 passed by VIII Additional Sessions Judge, Sagar in Sessions Trial No. 181/2021, whereby trial Court has convicted appellant under Section 420(34 counts) of IPC and 2 sentenced to undergo R.I. for 5 years for each count and fine of Rs. 10,000/- in each count and Section 193 of IPC and sentenced to undergo R.I. for 1 year and fine of Rs. 1000/- with default stipulation and ordered that sentence of substantive imprisonment imposed under Section 420 of IPC for 34 counts shall run consecutively.
2. Learned counsel for the appellant, at the outset, has submitted that he is not challenging conviction part of judgment. His prayer is that sentence imposed by learned trial court for offence under Section 420 (34 counts) of IPC and which has been ordered to be run one after another, be modified and be ordered to run concurrently.
3. Learned counsel for the State submits that learned trial Court has rightly convicted and sentenced appellant under Section 420 (34 counts) and Section 193 of IPC. It is also urged that appellant has cheated 34 persons. Therefore, learned trial Court has rightly ordered sentence imposed under Section 420 of IPC to run consecutively. Hence, no interference is required in the findings recorded by the trial Court and appeal be dismissed.
4. I have learned counsel for the appellant as well as State and have examined recorded of the case.
5. So far as conviction is concerned, this court has gone through the evidence available on record, both oral as well as documentary evidence and has examined the same minutely. In this court's considered opinion from evidence available on 3 record, offence under Section 420 (34 counts) and Section 193 of IPC stands clearly established against appellant/accused. In this court's opinion, learned trial Court has rightly appreciated evidence on record and has rightly convicted appellant for aforesaid offences. Hence, no interference is required in the findings recorded by the trial Court with respect to appellant's conviction for aforesaid offences.
Principles governing concurrent/consecutive sentences:-
6. Sole issue involved in this case is whether in the instant case, sentence imposed by the trial Court under Sentence 420 (34 counts) of IPC can be ordered to run concurrently. Before discussing and examining the facts and evidence of the case, it would be appropriate to refer relevant pronouncement of Hon'ble Apex court having bearing on the issue involved in the case.
7. A three judge bench of Hon'ble Apex Court in O. M. Cherian @ Thankachan Vs. State of Kerala and others, (2015) 2 SCC 501, has dealt present issue in detail and has held as under:-
"9. Section 31 CrPC relates to the quantum of punishment that the court has jurisdiction to pass where the accused is convicted for two or more offences at one trial. Section 31 CrPC reads as follows:
"31.Sentence in cases of conviction of several offences at one trial.--(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Penal Code, 1860, sentence him for such offences, to the several punishments 4 prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court: Provided that--
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the court is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence."
10. Section 31 CrPC relates to the quantum of punishment which may be legally passed when there is (a) one trial, and (b) the accused is convicted of "two or more offences". Section 31 CrPC says that subject to the provisions of Section 71 IPC, the court may pass separate sentences for two or more offences of which the accused is found guilty, but the aggregate punishment must not exceed the limit fixed in provisos (a) and (b) of sub-section (2) of Section 31 CrPC. In Section 31(1) CrPC, since the word "may" is used, in our considered view, when a person is convicted for two or more offences at one trial, the court may exercise its discretion in directing that the sentence for each offence may either run consecutively or concurrently subject to 5 the provisions of Section 71 IPC. But the aggregate must not exceed the limit fixed in provisos (a) and (b) of sub-section (2) of Section 31 CrPC, that is; (i) it should not exceed 14 years; and (ii) it cannot exceed twice the maximum imprisonment awardable by the sentencing court for a single offence.
11. The words "unless the court directs that such punishments shall run concurrently" occurring in sub-section (1) of Section 31, make it clear that Section 31 CrPC vests a discretion in the court to direct that the punishment shall run concurrently when the accused is convicted at one trial for two or more offences. It is manifest from Section 31 CrPC that the court has the power and discretion to issue a direction for concurrent running of the sentences when the accused is convicted at one trial for two or more offences. Section 31 CrPC authorises the passing of concurrent sentences in cases of substantive sentences of imprisonment. Any sentence of imprisonment in default of fine has to be in excess of, and not concurrent with, any other sentence of imprisonment to which the convict may have been sentenced.
12. The words in Section 31 CrPC "... sentence him for such offences, to the several punishments prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct"
indicate that in case the court directs sentences to run one after the other, the court has to specify the order in which the sentences are to run. If the court directs running of sentences concurrently, order of running of sentences is not required to be mentioned. Discretion to order running of sentences concurrently or consecutively is judicial discretion of the court which is to be exercised as per the established law of sentencing. The court before exercising its discretion under 6 Section 31 CrPC is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently.
13. Section 31(1) CrPC enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31(1) CrPC. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, the court has to direct those sentences to run concurrently.
14. The opening words "in the case of consecutive sentences" in sub- section (2) of Section 31 CrPC make it clear that this sub-section refers to a case in which "consecutive sentences" are ordered. The provision says that if an aggregate punishment for several offences is found to be in excess of punishment which the court is competent to inflict on a conviction of single offence, it shall not be necessary for the court to send the offender for trial before a higher court. Proviso
(a) is added to sub-section (2) of Section 31 CrPC to limit the aggregate of sentences--that in no case, the aggregate of consecutive sentences passed against an accused shall exceed fourteen years.
"Fourteen years' rule" contained in clause (a) of the proviso to 7 Section 31(2) CrPC may not be applicable in relation to sentence of imprisonment for life, since imprisonment for life means the convict will remain in jail till the end of his normal life.
16. When the prosecution is based on single transaction where it constitutes two or more offences, sentences are to run concurrently. Imposing separate sentences, when the acts constituting different offences form part of the single transaction is not justified. So far as the benefit available to the accused to have the sentences to run concurrently of several offences based on single transaction, in V.K. Bansal v. State of Haryana [(2013) 7 SCC 211], in which one of us (T.S. Thakur, J.) was a member, this Court held as under : (SCC p. 217, para 16) "16. ... 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."
17. This Court in Mohd. Akhtar Hussain v. Collector of Customs Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183, recognised the basic rule of conviction arising out of a single transaction justifying the concurrent running of the sentences. The following passage in this regard is relevant to be noted : (SCC p. 187, para 10) "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 8 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 Manoj v. State of Haryana (2014) 2 SCC 153 the Bench followed Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 .
18. While referring the matter to a larger Bench, the Bench observed that in Mohd. Akhtar Hussain case, [(1988) 4 SCC 183], Section 31 CrPC was not noticed by this Court. It is to be pointed out that in Mohd. Akhtar Hussain case, [(1988) 4 SCC 183] and Manoj case, [(2014) 2 SCC 153], the appellants who were convicted for different counts of offences arose out of a single transaction, favouring the exercise of discretion to the benefit of the accused that the sentences shall run concurrently. Those decisions are not cases arising out of conviction at one trial of two or more offences and therefore, reference to Section 31 CrPC in those cases was not necessitated.
19. As pointed out earlier, Section 31 CrPC deals with quantum of punishment which may be legally passed when there is (a) one trial; and (b) the accused is convicted of two or more offences. The ambit of Section 31 is wide, covering not only a single transaction constituting two or more offences but also offences arising out of two or more transactions. In the two judgments in Mohd. Akhtar Hussain [(1988) 4 SCC 183] and Manoj [(2014) 2 SCC 153] , the issue that fell for consideration was the imposition of sentence for two or more offences arising out of the single transaction. It is in that context, in those cases, this Court held that the sentences shall run concurrently.
20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their 9 discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain, [(1988) 4 SCC 183] and Section 31 CrPC."
8. A five Judge bench of Hon'ble Apex Court in Muthuramalingam and others Vs. State Represented by Inspector of Police, (2016) 8 SCC 313, after referring to O.M. Cherian @ Thankachan (supra), held as under:-
"7. A careful reading of the above would show that the provision is attracted only in cases where two essentials are satisfied viz. (1) a person is convicted at one trial, and (2) the trial is for two or more offences. It is only when both these conditions are satisfied that the court can sentence the offender to several punishments prescribed for the offences committed by him provided the court is otherwise competent to impose such punishments. What is significant is that such punishments as the court may decide to award for several offences committed by the convict when comprising imprisonment 10 shall commence one after the expiration of the other in such order as the court may direct unless the court in its discretion orders that such punishment shall run concurrently. Sub-section (2) of Section 31 on a plain reading makes it unnecessary for the court to send the offender for trial before a higher court only because the aggregate punishment for several offences happens to be in excess of the punishment which such court is competent to award provided always that in no case can the person so sentenced be imprisoned for a period longer than 14 years and the aggregate punishment does not exceed twice the punishment which the court is competent to inflict for a single offence."
9. Issue involved in the case has also been dealt by Hon'ble Apex Court recently in Sunil Kumar @ Sudhir Kumar and another Vs. State of Uttar Pradesh, (2021) 5 SCC 560 and has held as under:-
"10. The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) CrPC. The contours of these provisions have been succinctly delineated and explained by this Court in O.M. Cherian [(2015) 2 SCC 501] in the following terms :
(SCC pp. 511-12, paras 20-21) "20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed 11 and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 and Section 31 CrPC."
10.2. Thus, it is beyond a shadow of doubt that Section 31(1) CrPC vests complete discretion with the court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the court; but this discretion has to be judiciously exercised with reference to the nature of the offence(s) committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the court may direct.
11. For what has been provided in Section 31(1) CrPC read with the expositions of this Court, it follows that the court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In Nagaraja Rao [(2015) 4 SCC 302], this Court 12 expounded on this legal obligation upon the court of first instance in the following terms : (SCC p. 305, para 11) "11. The expressions "concurrently" and "consecutively" mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under IPC or/and of an offence punishable under any other Special Act arising out of one trial or more. It is for the reason that award of former enure to the benefit of the accused whereas award of latter is detrimental to the accused's interest. It is therefore, legally obligatory upon the court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentences awarded to the accused would run "concurrently" or they would run "consecutively"."
12. As noticed, if the court of first instance does not specify the concurrent running of sentences, the inference, primarily, is that the court intended such sentences to run consecutively, though, as aforesaid, the court of first instance ought not to leave this matter for deduction at the later stage. Moreover, if the court of first instance is intending consecutive running of sentences, there is yet another obligation on it to state the order (i.e. the sequence) in which they are to be executed. The disturbing part of the matter herein is that not only the trial court omitted to state the requisite specifications, even the High Court missed out such flaws in the order of the trial court.
14. Faced with the position that the stated omissions will not, by themselves, provide a room for concurrent running of sentences, the learned counsel for the appellants has endeavoured to invoke the "single transaction" principle. In our view, the said principle is essentially referable to Section 220 CrPC, which provides that if more offences than one are committed in one series of acts so connected together as to form the same transaction, then the accused may be charged with and tried at one trial for every such offence. In a given 13 case, after such trial for multiple offences, if the accused is convicted and awarded different punishments, concurrent running thereof may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related with "single transaction"
cannot be imported for dealing with the question at hand.
15. In Mohan Baitha v. State of Bihar, (2001) 4 SCC 350, this Court observed that the expression "same transaction", from its very nature, is incapable of an exact definition and it is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. The question involved in that case did not relate to sentence but to the inquiry and trial of different offences pertaining to Sections 304-B, 498-A, 120-B and 406 IPC and territorial jurisdiction of the Magistrate in Bihar when the alleged incident constituting one of the offences i.e. under Section 304-B IPC, had taken place in the State of Uttar Pradesh. Of course, in Mohd. Akhtar Hussain [(1988) 4 SCC 183], this Court indicated that if a transaction constitutes two offences under two enactments, generally it is wrong to have consecutive sentences but this Court hastened to observe that such a rule shall have no application if the transaction relating to the offences is not the same or the facts concerning the two offences are quite different. Significantly, in that case, consecutive running of sentences awarded to the appellant-accused, in two different cases pertaining to the Gold (Control) Act, 1968 and the Customs Act, 1962, was upheld by this Court with the finding that the two offences for which the appellant was prosecuted were "quite distinct and different". The only modification ordered by this Court was concerning the term of imprisonment for the latter conviction while disapproving its enhancement from 4 years to 7 years by the High Court after noticing that he was already sentenced to imprisonment for a term of 7 years in the first offence. The trial and conviction in Manoj [(2014) 2 SCC 14 153] had been for the offence under Section 307 IPC as also under Sections 25 and 27 of the Arms Act. In Nagaraja Rao,[ (2015) 4 SCC 302], the trial and conviction had been of the offences under Section 381 IPC and Section 52 of the Post Office Act, 1898. In Gagan Kumar [(2019) 5 SCC 154] , offences were under Sections 279 and 304-A IPC. These decisions, essentially proceeding on their own facts, do not make out a case for interference in favour of the appellants."
10 Hon'ble Apex Court in V.K. Bansal Vs. State of Haryana and another, (2013) 7 SCC 211 has also deliberated on the issue involved in the case and has observed and held as under:-
"13. There are also cases where the High Courts have depending upon whether facts forming the basis of prosecution arise out of a single transaction or transactions that are akin to each other directed that the sentences awarded should run concurrently. As for instance the High Court of Allahabad has in Mulaim Singh v. State [1974 Cri LJ 1397 (All)] directed the sentence to run concurrently since the nature of the offence and the transactions thereto were akin to each other. Suffice it to say that the discretion vested in the Court for a direction in terms of Section 427 can and ought to be exercised having regard to the nature of the offence committed and the facts situation, in which the question arises.
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) "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 15 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.
17. Applying the above test to the 15 cases at hand we find that the cases against the appellant fall in three distinct categories. The transactions forming the basis of the prosecution relate to three different corporate entities who had either entered into loan transactions with the State Financial Corporation or taken some other financial benefit like purchase of a cheque from the appellant that was on presentation dishonoured. The 15 cases that have culminated in the conviction of the appellant and the award of sentences of imprisonment and fine imposed upon him may be categorised as under:
(1) Cases in which the complainant Haryana State Financial Corporation advanced a loan/banking facility to M/s Arawali Tubes Ltd. acting through the appellant as its Director viz. Criminal Complaint Cases No. 269-II/1997;
No. 549-II/1997; No. 393-II/1997; No. 371-II/1997; No. 372-II/1997; No. 373-II/1997; No. 877-II/1996; No. 880- II/1996; No. 878-II/1996; No. 876-II/1996; No. 879- II/1996 and No. 485-II/1996.
16(2) Cases in which the complainant Haryana State Financial Corporation advanced a loan/banking facility to the appellant to M/s Arawali Alloys Ltd. acting through the appellant as its Director viz. Criminal Complaint Cases No. 156-II/1997 and No. 396-II/1998.
(3) Criminal Complaint No. 331-II/1997 in which the complainant State Bank of Patiala purchased/discounted the cheque offered by Sabhyata Plastics acting through the appellant as its Director.
18. 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.
17The 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."
Analysis and findings:-
11. Now facts and evidence of the case would be examined in the light of principles laid down in aforesaid pronouncements.
12. For determining the issue involved in this case relevant facts are that present case pertains to a case where appellant/accused has been convicted for offence under Section 420 (34 counts) of IPC at one trial. From charges framed by trial Court, it is evident that above offences relate to a period of 10 to 11 months prior to 12.10.2019. It is also evident from record of the case that appellant had cheated more than 34 persons in the name of opening/establishing cloth factory in the village and on above ground, appellant received approximately Rs. 72, 00,000/-
from more than 34 persons. Learned trial Court has convicted appellant under Section 420 of IPC for 34 counts and Section 193 of IPC. Trial Court has sentenced appellant with R.I. for 5 years under Section 420 of IPC for each count and it has ordered sentence imposed under Section 420 of IPC for 34 counts to run consecutively. Thus, effectively sentence imposed on appellant for offence under Section 420 (34 counts) of IPC is RI for 170 years. It has also imposed fine of Rs.
183,40,000/- for conviction under Section 420 of IPC and in default RI 6 months for each counts.
13. In view of aforesaid and in present context, observations and principles laid down by Hon'ble Apex Court in Ammavasai and another Vs. Inspector of Police, Valliyanur and others, (2000) 9 SCC 749, squarely covers the issue involved in this case. In Ammavasai (supra) Hon'ble Apex Court has observed and held as under:-
"2. The appellants in this case are two. The 1st appellant Ammavasai was convicted in 4 different cases the occurrences 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 Penal Code, 1860 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 occurrences in all of which took place between 21-10-1989 and 7-5- 1990. He was also found guilty under Section 395 of the Penal Code, 1860 and was sentenced to undergo rigorous imprisonment for a 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, they 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 19 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.
5. We, therefore, direct that the sentence imposed on the 1st appellant pursuant to the conviction passed by the Assistant Sessions Judge, Pondicherry in SC No. 66 of 1991 will run untelescoped by any other sentence imposed upon him subsequently. In other words, the sentence imposed in subsequent cases would start running only on the termination of the sentence imposed upon him in the aforementioned case (SC No. 66 of 1991 on the file of the Assistant Sessions Judge, Pondicherry). We also order that the sentence imposed upon him in the following 3 cases will run concurrently:
1. SC No. 135 of 1993 -- in the Court of Sessions Judge, Tuticorin.
2. SC No. 69 of 1994 -- in the Court of Sessions Judge, Nagarcoil.
3. SC No. 197 of 1995 -- in the Court of Principal Sessions Judge, Nagapattinam.
6. Regarding the 2nd appellant's also, we adopt the same measure and order that the sentences imposed upon him by the Assistant Sessions Judge, Pondicherry in SC No. 66 of 1991 will run unaffected by any another sentence imposed upon him subsequently. Only on the termination of the aforesaid sentence the jail authorities would start reckoning the sentence imposed on him in respect of the remaining 4 cases, which are detailed below:
1. SC No. 32 of 1994 -- in the Court of Sessions Judge, Dindigul.20
2. SC No. 135 of 1993 -- in the Court of Sessions Judge, Tuticorin.
3. SC No. 69 of 1994 -- in the Court of Assistant Sessions Judge, Nagarcoil.
4. SC No. 197 of 1995 -- in the Court of Assistant Sessions Judge, Nagapattinam.
7. We make it clear that we permit the sentences passed on the 2nd appellant in respect of the abovementioned 4 remaining cases to run concurrently."
14. Hence, in view of factual scenario of instant case and keeping in mind the principles laid down by the Hon'ble Apex Court in pronouncements as referred in preceding paras and also in Ammavasai (supra), in this court's considered opinion, if appellant is directed to undergo a total period of 10 years of imprisonment in respect to all convictions pertaining to all 34 counts under Section 420 of IPC passed against him, that will be sufficient to meet ends of justice.
15. Hence, it is directed that sentence imposed by learned trial court with respect to Arvind Jatav (count No.1) under section 420 of IPC will run untelescoped by sentences imposed for remaining 33 counts under Section 420 of IPC upon appellant. In other words, the sentence imposed with respect to remaining 33 counts would start running only on the termination of sentence of imprisonment imposed upon appellant with respect to count No.1 (Arvind Jatav) under Section 420 of IPC. It is also ordered that sentence of imprisonment imposed by learned 21 Trial Court under Section 420 of IPC with respect to remaining 33 counts shall run concurrently.
16. It is made clear that sentence of imprisonment imposed for offence under Section 193 of IPC shall run concurrently with sentence imposed under Section 420 of IPC as directed by learned Trial Court in para 141 of impugned judgment.
17. It is also made clear that sentence imposed by learned Trial Court in default of payment of fine shall not be affected by this order.
18. Appeal filed by the appellant/accused is partly allowed to the extent as indicated hereinabove.
19. Present criminal appeal is disposed off accordingly.
[ (ACHAL KUMAR PALIWAL) Digitally signed by JUDGE L.R. LALIT SINGH RANA Date: 2024.09.03 17:20:29 +05'30'