Gujarat High Court
Anilkumar Hasmukhrai Pandya vs State Of Gujarat on 6 February, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/SCR.A/472/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 472 of 2014
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ANILKUMAR HASMUKHRAI PANDYA....Applicant
Versus
STATE OF GUJARAT....Respondent
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Appearance:
MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No. 1
MR PATEL ADDL PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 06/02/2014
ORAL ORDER
Only question raised in this petition is as regards the sentence imposed upon the applicant original accused No.2. While convicting the applicant, the learned trial Judge deemed it appropriate to order the sentences in respect of various offences to run consecutively and not concurrently. According to learned Counsel for the petitioner, such an order is harsh and was uncalled for in the facts and circumstances of the case.
Learned Counsel has taken this Court through the reasonings as to the sentence assigned by the learned trial Judge. Insofar as the original accused Nos.1 & 3 are concerned, after duly considering their position and other aspects mercy was shown; whereas insofar as the petitioner is concerned, manner of commission of offence and its repercussion on the society at large, were taken into consideration. The learned Judge opined that nondeposit of the money of Page 1 of 4 R/SCR.A/472/2014 ORDER petty depositors and misappropriation thereof by the petitioner to the tune of a huge sum of Rs.60/ Lacs is not less than a robbery. A note of increasing of such offences was also taken by the learned Judge. He opined that for offences under Sections 467, 468 and 471 of IPC the sentence can run concurrently; for the rest i.e. Section 406 of IPC, the sentence to run consecutively.
The reliance was placed by the learned trial Judge upon Section Section 31 of the Code of Criminal Procedure (for short Cr.PC) Section 71 of the IPC to justify awarding of the consecutive sentence for various offences. As a general rule, unless Court otherwise directs, sentence in cases of conviction of various offences at one trial are contemplated to run concurrently under Section 31 of Cr.PC, subject to the provisions of Section 71 of IPC. Section 71 of IPC contemplates that (a) unless expressly provided otherwise, a sentence for an offence consisting of several parts amongst which one or more such parts is itself an offence, the offender shall not be punished with punishment of more than one such offences, (b) in case of offence falling in separate definition of law or when several acts, of which one or more than one of such acts by itself is an offence, and on combination of such several acts a different offence is constituted, offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
Page 2 of 4R/SCR.A/472/2014 ORDER The petitioner has been found guilty for the offences punishable under Sections 406, 467, 468 and 471 of the IPC and as noticed above, insofar as Section 406 is concerned, the sentence against him is ordered to run consecutively i.e. after completion of the sentence for the offences punishable under Sections 467, 468 and 471 of the IPC. The definition relatable to the offence punishable under Section 406 of the IPC is provided in Section 405 thereof, according to which, the entrustment or dominion over the property and dishonest misappropriation thereof or conversion to his own use by the offender; that property, or dishonest user or dispossession of that property in violation of any direction of law prescribing the mode of discharge of such trust or of any legal contract etc., constitutes "criminal breach of trust", as distinguished from Sections 467, 468 and 471 of the IPC which are relatbale to the definition contained in Section 463, according to which, making of false document or false electronic record in part or full with intent to cause damage or injury, to public or to any person, or with intent to support any claim or title, or to cause any person to part with the property, or to enter into any express or implied contract, etc., is said to have committed forgery. Similarly, making of forged documents is defined in Section 464 of IPC and Section 467 contemplates punishment for forgery of valuable security bills etc. Section 468 deals with forgery for the purpose of cheating and Section 471 contemplates punishment for the use as genuine a forged document or electronic Page 3 of 4 R/SCR.A/472/2014 ORDER record.
Thus, it can be noticed that while Sections 467, 468 and 471 of IPC deal with forgery as defined in Sections 463 and 464 of IPC and therefore, Section 31 of Cr.PC and 71 of IPC would be attracted but the acts and the offences or the offence falling within definition of Sections 463 and 464 do not fall within the definition of Section 405 or the acts, or the offences defined in Sections 463 and 464 of the IPC do not overlap and take within its fold the ingredients of Section 406 of IPC and therefore, none of the parts of the offences, or the acts defined in Section 463 and 464 or the offences contemplated under Sections 467, 468 and 471 of the IPC, on combination constitute the offence under Section 405 of the IPC within the meaning of Section 71 of the IPC. Hence, it has rightly been observed by the learned trial Judge that the offence under Section 406 is distinct from the offences mentioned herein above.
Under the above circumstances, there is nothing on record indicating illegal exercise of the jurisdiction by the learned trial Judge and, therefore, the petition deserves summary rejection. Accordingly, the petition is summarily rejected.
(G.R.UDHWANI, J.) sompura Page 4 of 4