Karnataka High Court
Mr. Keshavamurthy vs The State Of Karnataka on 22 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:44654
WP No. 28848 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 28848 OF 2024 (GM-RES)
BETWEEN:
MR. KESHAVAMURTHY
PROPRIETOR,
M/S A. KESHAVMURTHY ENTERPRISES,
AGED ABOUT 51 YEARS,
NO.62, 2ND MAIN ROAD,
RAMACHANDRAPURAM,
BANGALORE-560 021.
(PETITIONER PRESENTLY IN JUDICIAL CUSTODY)
...PETITIONER
(BY SRI. HITESH GOWDA B.J., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally signed
by NAGAVENI THROUGH ITS ADDITIONAL CHIEF SECRETARY
Location: HIGH (HOME) AND SECRETARY TO GOVERNMENT (PCAS),
COURT OF
KARNATAKA DEPARTMENT OF HOME
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
2. THE CHIEF SUPERINTENDENT
CENTRAL PRISON-BANGALORE
PARAPANA AGRAHARA,
BANGALURU-560 068.
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NC: 2024:KHC:44654
WP No. 28848 of 2024
3. M/S ARIHANT CLOTHING PVT.LTD
NO.1/1-4(OLD NO.1/1-E)
4TH FLOOR, 7TH CROSS,
NEW GUDDADAHALLI, MYSORE ROAD,
BENGALURU-560 026
REP. BY SPECIAL POWER OF ATTORNEY
G.K. PUNIRAJ,
REG. UNDER COMPANIES ACT 1959.
...RESPONDENTS
(BY SRI. B.N. JAGADEESHA ADDL.SPP R1 AND R2)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA R/W 482 AND 427 OF THE CODE
OF CRIMINAL PROCEDURE PRAYING TO CONCURRENTLY RUN
THE ORDER OF CONVICTION PASSED IN CC NO. 50687/2017,
CC NO. 50688/2017 AND CC NO. 50689/2017 DATED.
19.01.2019 AT ANNEXURE-A, A1 AND A2 AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court seeking the following prayers:
"I. To concurrently run the order of conviction passed in CC No.50687/2017, CC No.50688/2017 and CC No.6089/2017 dated 19.01.2019 at Annexure-A, A1 & A2 in the interest of Justice.-3-
NC: 2024:KHC:44654 WP No. 28848 of 2024 II. Issue a Writ of Mandamus or any other Writ directing the Respondent No.2 to release the Petitioner from Judicial Custody in the interest of Justice.
III. Pass any order/direction/direction has deem fit in the facts and circumstance of the case, in the interest of Justice."
2. The petitioner seeks that the order of conviction passed in C.C.No.50687/2017, C.C.No.50688/2017 and C.C.No.50689/2017 to run concurrently.
3. Heard Sri. Hitesh Gowda B.J., learned counsel appearing for the petitioner and Sri. B.N. Jagadeesha, learned Additional State Public Prosecutor appearing for respondents No.1 and 2.
4. Facts in brief germane are as follows:
The petitioner is convicted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). The backdrop of such conviction need not be gone into for the relief that the petitioner seeks in the subject petition. Arising out of a solitary transaction, the petitioner is said to have issued three cheques, since they were three different cheques, three different proceedings were instituted against the petitioner for the same transaction of a total sum of -4- NC: 2024:KHC:44654 WP No. 28848 of 2024 Rs.1.50/- crores of goods supplied. The cheques were dishonoured and in the three different proceedings i.e. C.C.No.50687/2017, C.C.No.50688/2017 and C.C.No.50689/2017, the petitioner gets convicted of the offence.
5. The petitioner prefers three different criminal appeals in Crl.A.No.25043/2019, Crl.A.No.25044/2019 and Crl.A.No.25045/2019. All the three appeals come to be dismissed by an order dated 19.01.2021. The dismissal of the appeals were called in question before this Court in criminal revision petitions in Crl.R.P.No.496/2021, Crl.R.P.No.497/2021 and Crl.R.P.No.498/2021. The criminal revision petitions also come to be dismissed by an order of the coordinate bench on 27.09.2023. The petitioner prefers special leave petitions in SLP.No.1995/2024 c/w. SLP.No.1996/2024 and SLP.No.1997/2024. The special leave petitions also come to be dismissed on 12.02.2024. It is thereafter, the petitioner was taken into judicial custody in terms of an order passed by the learned Magistrate on 21.03.2024. The offence punishable under Section 138 of the Act is six months imprisonment. The petitioner is said to have completed six months of sentence on -5- NC: 2024:KHC:44654 WP No. 28848 of 2024 20.09.2024. The petitioner is not released from custody on the ground that he has to serve sentence in the other two convictions. Therefore, the petitioner is before this Court seeking a direction that the sentence upon convictions must run concurrently and he should be released from prison. He would seek to place reliance upon the judgments of the Apex Court in the case of SHYAM PAL Vs. DAYAWATI BESOYA1 and in the case of V.K.BANSAL Vs. STATE OF HARYANA2.
6. Per contra, the learned Additional State Public Prosecutor would though refute the submissions of the learned counsel appearing for the petitioner on its merit, but admits the fact that the petitioner is convicted in three different proceedings arising out of a solitary transaction and he would leave decision to the Court.
7. I have give my anxious consideration to the submissions made by the respective learned counsel and have perused the material available on record.
1(2016) 10 SCC 761 2 (2013) 7 SCC 211 -6- NC: 2024:KHC:44654 WP No. 28848 of 2024
8. The afore-narrated facts are not in dispute. The third respondent is the complainant. It is the allegation of the third respondent that the petitioner has been buying goods from the third respondent on credit basis in the regular course of business. Like so, a transaction of Rs.1.50/- crores happens between the two. Towards the goods supplied by the complainant's company, the petitioner had issued eight cheques, three of which become the subject matter of the proceedings. The three cheques and the amount involved in the transaction are as follows:
"1) In CC No.50687/2017 - Two Cheques:- a) Cheque bearing No.630894 for amount of Rs.12,53,015/-, dt:01-10-2016 and b) Cheque bearing No.630895 for amount of Rs.12,32,660/-, dt:01-10-2016, drawn on State Bank of India, Bangalore.
2) In CC No.50687/2017 - Three Cheques:- i.e., a) Cheque bearing No.598657 for amount of Rs.25,00,000/-, dt:01-10-2016 and b) Cheque bearing No.630890 for amount of Rs.12,64,340/-, dt:01-10-2016 and c) Cheque bearing No.630893 for amount of Rs.12,49,985/- dt:01-10-2016.
3) In CC No.50687/2017 - Three Cheques:-
bearing No.568654, bearing No.598655 and No.598656 for amount of Rs.25,00,000/- each on dated:01.10.2016."
The petitioner then comes to be convicted of the offences in the aforesaid criminal cases. A perusal at the order of -7- NC: 2024:KHC:44654 WP No. 28848 of 2024 conviction would clearly indicate that all the three proceedings arise out of a solitary transaction.
9. The petitioner has challenged the orders of conviction at appropriate stages before the appropriate Court and has lost the legal battle upto the Supreme Court. After the order of the Apex Court, the petitioner is taken into judicial custody on 21.03.2024. It is not in dispute that the offence punishable is six months. Therefore, he completes six months on 20.09.2024, but he is still in the prison for the reason that the sentences so awarded against the petitioner in the aforesaid proceedings are left high and dry without indicating whether they would run consecutive to each other or concurrently. If the convictions in different criminal cases arise out of the same transaction, particularly of the offence punishable under Section 138 of the Act, the sentence must run concurrently. It would have been an altogether a difference circumstance, if the transactions were different and criminal cases were different, while it is not so in the case at hand. In such circumstances how the sentence should run need not detain this Court for long or delve deep into the matter. The -8- NC: 2024:KHC:44654 WP No. 28848 of 2024 Apex Court in the case of V.K.BANSAL (supra) considering the very issue has held as follows:
"6. The learned counsel appearing for the appellant strenuously argued that the High Court has committed an error in declining the prayer made by the appellant for an appropriate direction to the effect that the sentences awarded to the appellant in the cases in which he was found guilty ought to run concurrently and not consecutively. It was urged that the trial court and so also the appellate and the revisional courts were competent to direct that the sentences awarded to the appellant should run concurrently. The power vested in them to issue such a direction has not been properly exercised, contended the learned counsel. Reliance in support was placed upon the decision of this Court in State of Punjab v. Madan Lal [State of Punjab v. Madan Lal, (2009) 5 SCC 238 : (2009) 2 SCC (Cri) 650] .
7. Section 427 of the Code of Criminal Procedure deals with situations where an offender who is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life. It provides that 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.
8. Section 427 may at this stage be extracted:
"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 -9- NC: 2024:KHC:44654 WP No. 28848 of 2024 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 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."
9. That upon a subsequent conviction the imprisonment or imprisonment for life shall commence at the expiration of the imprisonment which has been previously awarded is manifest from a plain reading of the above. The only contingency in which this position will not hold good is where the Court directs otherwise. The proviso to sub-section (1) to Section 427 is not for the present relevant as the same deals with cases where the person concerned is sentenced to imprisonment by an order under Section 122 in default of furnishing security which is not the position in the case at hand. Similarly sub-section (2) to Section 427 deals with situations where 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. Sub-section (2) provides that the subsequent sentence shall in such a case run concurrently with such previous sentence.
10. We are in the case at hand concerned more with the nature of power available to the Court under Section 427(1) of the Code, which in our opinion stipulates a general rule to be followed except in three situations: one falling under the proviso to sub-section (1) to Section 427; the second falling under sub-section (2) thereof; and
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NC: 2024:KHC:44654 WP No. 28848 of 2024 the third where the court directs that the sentences shall run concurrently. It is manifest from Section 427(1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises.
11. High Courts in this country have, therefore, invoked and exercised their discretion to issue directions for concurrent running of sentence as much as they have declined such benefit to the prisoners. For instance a direction for concurrent running of the sentence has been declined by the Gujarat High Court in Sumlo v. State of Gujarat [2007 Cri LJ 634 (Guj)] that related to commission of offences at three different places resulting in three different prosecutions before three different courts. The High Court observed:
"The rule of 'single transaction' even if stretched to any extent will not bring the cases aforesaid under the umbrella of 'single transaction' rule and therefore, this application fails. The application is rejected."
12. Similarly a direction for concurrent running of sentence has been declined by the same High Court in State of Gujarat v. Zaverbhai Kababhai [1996 Cri LJ 1296 (Guj)] which related to an offence of rape committed at different places resulting in conviction in each one of those offences in different prosecutions. The High Court observed: (Cri LJ p. 1298, para 11)
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NC: 2024:KHC:44654 WP No. 28848 of 2024 "11. ... It is true that it is left to the discretion of the Court while ordering the sentence to run either consecutively or concurrently. However, such discretion has to be exercised judicially, having regard to the facts and circumstances of the case. As observed by the Supreme Court, the rule with regard to sentencing concurrently will have no application, if the transaction relating to offence is not the same and the facts constituting the two offences are quite different. The respondent-accused is found to be guilty for the offence punishable under Section 376 of the Penal Code in two different and distinct occurrences on two different dates, and the transactions relating to the commission of the offences have no nexus with each other."
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 : 1988 SCC (Cri) 921] 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)
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NC: 2024:KHC:44654 WP No. 28848 of 2024 "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 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."
15. In Madan Lal case [State of Punjab v. Madan Lal, (2009) 5 SCC 238 : (2009) 2 SCC (Cri) 650] this Court relied upon the decision in Akhtar Hussain case [(1988) 4 SCC 183 : 1988 SCC (Cri) 921] and affirmed the direction of the High Court for the sentences to run concurrently. That too was a case under Section 138 of the Negotiable Instruments Act. The State was aggrieved of the direction that the sentences shall run concurrently and had appealed to this Court against the same. This Court, however, declined interference with the order passed by the High Court and upheld the direction issued by the High Court.
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."
(Emphasis supplied) Following the said judgment, the Apex Court again in SHYAM PAL (supra) has held as follows:
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NC: 2024:KHC:44654 WP No. 28848 of 2024 "8. To reiterate, the appellant preferred two revision petitions before the High Court corresponding to his convictions in the two complaint cases, being Criminal Revision Petition No. 403 of 2015 (pertaining to the present appeals) and Criminal Revision Petition No. 404 of 2015. By separate orders dated 8-2-2016, both these revision petitions were disposed of by maintaining the conviction but moderating the default sentence from simple imprisonment of six months to that of three months. In both the petitions as well, by separate orders dated 22-2-2016, the High Court declined to release the appellant by acting on his plea that he, meanwhile had served the substantive as well as default sentence, if construed to have run concurrently. It is a matter of record, that the special leave petition filed against the orders dated 8-2-2016 and 22-2-2016 rendered by the High Court in Criminal Revision Petition No. 404 of 2015 has since been dismissed by this Court and, therefore, the conviction and sentence awarded to the appellant in the corresponding complaint case has attained finality.
9. The learned counsel for the appellant has urged that as both the complaints filed by the respondents have arisen out of successive transactions in a series between the same parties and had been tried together on the basis of same set of evidence, the sentences awarded ought to run concurrently, the High Court had failed to appreciate the same. It has been submitted that the appellant is in custody since 25-2-2015 and if the two substantive sentences are construed to run concurrently, he has served not only the substantive sentences but also the sentence in default of fine as on date. That the appellant comes from a poor financial background, as well as is the sole bread earner of the family and that if the two sentences are to run consecutively, he would suffer grave injustice, has been emphasised. No argument, noticeably has been advanced, as abandoned before the High Court as well, impeaching the conviction.
10. We have extended our required consideration to few facts and the submissions made. The materials on record leave no manner of
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NC: 2024:KHC:44654 WP No. 28848 of 2024 doubt that the complaints filed by the respondents stem from two identical transactions between the same parties whereunder the respondent had advanced a loan of Rs 5 lakhs each to the appellant on two different dates against which the latter had issued cheques to discharge his debt and that the cheques had been dishonoured. The facts pleaded and proved do unassailably demonstrate that the loans advanced had been in the course of a series of transactions between the same parties on same terms and conditions. Significantly in both the cases, following the conviction of the appellant under Section 138 of the Act, the same sentences as well have been awarded. There is thus an overwhelming identicalness in the features of both the cases permitting, the two transactions, though undertaken at different points of time, to be deemed as a singular transaction or two segments of one transaction. This deduction understandably is in the singular facts of the case.
11. The custody certificate dated 6-5-2016 issued by the Deputy Superintendent of Prison, Central Jail No. 5, Tihar, New Delhi appended to the appeal petition mentions that the appellant on being convicted in the complaint cases referred to hereinabove under Section 138 of the Act is serving out the sentences awarded and that the period of his custody is as hereunder:
(1) 25-2-2015 to 13-12-2015 (as convict in CC No. 430 of 2011) (2) 14-12-2015 till date i.e. 6-5-2016 (as convict in CC No. 407 of 2011) That meanwhile the appellant had been on interim bail for 10 days from 5-10-2015 to 14-10-2015 as granted by the High Court has also been stated.
12. The law on the orientation of two sentences awarded to an offender following his conviction successively, to define the cumulative duration thereof is envisaged in Section 427 of the Code of Criminal Procedure, 1973 (for short "the Code") in the following terms:
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NC: 2024:KHC:44654 WP No. 28848 of 2024 "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 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 of imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."
13. Though this provision has fallen for scrutiny of this Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal v. State of Haryana where it was held that though it is manifest from Section 427(1), that the Court has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and
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NC: 2024:KHC:44654 WP No. 28848 of 2024 the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same.
14. The imperative essentiality of a single transaction as the decisive factor to enable the court to direct the subsequent sentence to run concurrently with the previous one was thus underscored. It was expounded as well that the direction for concurrent running of sentence would be limited to the substantive sentence alone.
15. In a more recent decision of this Court in Benson v. State of Kerala [Benson v. State of Kerala, (2016) 10 SCC 307] arising from the conviction of the appellant from his prosecution on the offences proved, this Court in the singular facts as involved and having regard to the duration of his incarceration and the remission earned by him, extended the benefit of such discretion and directed that the sentences awarded to him in those cases would run concurrently. It was noticeably recorded that the offences in the cases under scrutiny had been committed on the same day. The benefit of the discretion was accorded to the appellant therein referring as well to the observation in V.K. Bansal that it is difficult to lay down any straitjacket approach in the matter and that a direction that the subsequent sentence would run concurrently or not, would essentially depend on the nature of the offence or offences and the overall fact situation. Understandably, the appellant was required to serve the default sentence as awarded with the direction that if the
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NC: 2024:KHC:44654 WP No. 28848 of 2024 fine imposed had not been deposited, the default sentence or sentences would run consecutively.
16. Reverting to the facts as obtained in the present appeal, we are of the comprehension, on an appreciation thereof as well as the duration of the appellant's custody, as is evidenced by the certificate to that effect, that the appellant is entitled to the benefit of the discretion contained in Section 427 of the Code. In arriving at this conclusion we have, as required, reflected on the nature of the transactions between the parties thereto, the offences involved, the sentences awarded and the period of detention of the appellant as on date."
(Emphasis supplied) In the light of the admitted fact that the petitioner is convicted in three different criminal cases arising out of a solitary transaction of Rs.1.50/- crores, the sentence cannot, but be held to run concurrently and if the sentence is held to run concurrently, the petitioner has completed his sentence of six months imprisonment. Therefore, I deem it appropriate to hold that the petitioner is entitled to release from judicial custody, as the sentences were to run concurrently and on such concurrently running sentences, the imprisonment of the petitioner is now complete.
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NC: 2024:KHC:44654 WP No. 28848 of 2024
10. For the aforesaid reasons, the following:
ORDER a. The writ petition is allowed.
b. It is held that the orders of sentence passed upon conviction in C.C.No.50687/2017, C.C.No.50688/2017 and C.C.No.50689/2017 are to run concurrently.
c. As a consequence, I direct the second respondent to release the petitioner from judicial custody after securing an order from the hands of the concerned Court in a manner known to law.
Sd/-
(M.NAGAPRASANNA) JUDGE JY List No.: 5 Sl No.: 5 CT:SNN