Gujarat High Court
Sudesh Devendrakumar Jain vs State Of Gujarat on 4 December, 2020
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/5623/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5623 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUDESH DEVENDRAKUMAR JAIN
Versus
STATE OF GUJARAT
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Appearance:
MR RAJESH K KANANI(2157) for the Applicant(s) No. 1
MR A.K. SAKUNDE ADVOCATE WITH MS HIRAL K SHAH(10694) for the
Respondent(s) No. 2
MR PRANAV TRIVEDI APP(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/12/2020
ORAL JUDGMENT
1. Rule. Mr. Pranav Trivedi, learned APP and Ms. Hiral Shah, learned advocate for the respondent no.2, waive service of notice of rule on behalf of respective parties. The matter was extensively heard on different dates and on earlier date, with the Page 1 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT consent of learned advocates on both the sides, it was heard finally and thereafter kept for pronouncement of judgment.
2. The petitioner, who has suffered conviction in four cases under Section 138 of Negotiable Instrument Act, 1881 (for short 'N.I. Act, 1881), has preferred petition under Article 226 of the Constitution of India as well as under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') for direction under Section 427 of Cr.P.C. for the sentences to run concurrently imposed by 25th Addl. Senior Civil Judge & C.J.M., Vadodara by judgment and order dated 07.02.2019 in Criminal Case No.36982 of 2015 and Criminal Case No.36983 of 2015 as well as quashing the order of sentences running consecutively in Criminal Case No.36984 of 2015 and Criminal Case No.36985 of 2015 by judgment and order dated 03.12.2019 by the 4 th Addl. J.M.F.C. Vadodara with a further direction of the sentence to run concurrently. All the complaints were filed on 03.07.2015. Criminal Case No.36985 of 2015 was by Sudha Mehta, mother of respondent no.2 - Utpal Vinayak Mehta, who has filed rest of the three complainants.
3. The facts as could be gathered from the judgments are briefly narrated as under:
3.1 The petitioner and his wife were in the business of investment, respondent no.2 is a financial consultant. Both the parties have their bank account in Induslnd Bank where they came in touch with each other. Petitioner convinced respondent no.2 for investment, on assurance to give 50% return per month, as his wife was an agent in Zaveri Securities. The respondent no.2 invested the amount of more than Rs.37,00,000/- on Page 2 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT different dates by issuing Cheques and in cash. Respondent no.2 being daughter, convinced her mother Sudha Mehta to meet petitioner to get better returns from the investment thus accordingly paid Rs.4,50,000/- in Cheque and Rs.50,000/- in cash.
3.2 When the respondent no.2 claimed the investment amount and returns from the petitioner, he could not pay the same. Thereafter, Sudha Mehta, informed to file complaint, hence on 04.02.2015, a notarized agreement was executed between them to the effect that the petitioner will pay back the due amount. The petitioner issued Cheques worth Rs.30,00,000/-, Rs.5,00,000/- and Rs.85,00,000/- dated 25.04.2015, 15.05.2015 and 26.02.2015 to respondent no.2 and Cheque of Rs.4,65,000/- dated 27.04.2015 to Sudha Mehta, complainant of Criminal Case No.36985 of 2015. All the Cheques were presented to the Bank for clearance; however the said Cheques could not be honoured and were returned with endorsement 'fund insufficient'.
3.3 Legal notices were issued demanding the amount of the respective Cheques. Petitioner failed to make payment of the amount to the payee, hence four complaints under section 138 of the N.I. Act, 1881 against the petitioner before the J.M.F.C. Vadodara came to be filed. All the cases were listed together before the J.M.F.C. Vadodara for further proceedings; however, after some time under administrative order, two cases being Criminal Case No.36984 of 2015 and Criminal Case No.36985 of 2015 were transferred to 4th Addl. J.M.F.C. Vadodara.Page 3 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020
R/SCR.A/5623/2020 JUDGMENT 3.4 The Addl. Sr. Civil Judge, & CJM in Criminal Case
No.36982 of 2015 and 36983 of 2015 vide order dated 07.02.2019 convicted the petitioner and sentenced him to undergo the rigorous imprisonment for one year and six months respectively and also directed to pay a sum of Rs.30,00,000/-
and Rs.5,00,000/- respectively by way of compensation to the respondent no.2 as per section 357(3) of Cr.P.C.
3.5 The petitioner surrendered to the custody on 07.02.2019 and did not challenge the said judgments. On 03.12.2019, Fourth Addl. Civil Judge & JMFC, Vadodara, in remaining two cases being C.C. No.36984 of 2015 and C.C. No.36985 of 2015, convicted the petitioner and sentenced to undergo simple imprisonment for one year in each case and also directed to pay in total Rs.85,00,000/- and Rs.4,85,000/- respectively to the respondent no.2 and Sudha Mehta within three months and in default of payment, one month simple imprisonment in each case. It has also been directed that both the sentences would run consecutively i.e. one after the other. Thus, the petitioner prays for direction for the sentences imposed upon him to run concurrently instead of consecutively.
4. Mr. Rajesh K.Kanani, learned advocate for the petitioner relying on the grounds raised in the petition memo submitted that the direction to undergo the sentence twice one after another for the same offence, amounts to clear violation of Section 427 of the Cr.P.C. and also Article 20(2) of the Constitution of India, as no person shall be prosecuted and punished for the same offence more than once and thus stated that the learned Judge ought to have ordered the sentences to Page 4 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT run concurrently to meet the ends of justice.
4.1. Mr. Kanani, learned advocate for the petitioner further stated that the nature of evidence adduced by the respondent no.2 in all the four cases are same, which suggests beyond doubt that it is the single transaction between the same parties, resulting into filing of four complaints under section 138 of the N.I. Act, 1881 in the same Court at Vadodara and because of administrative order two cases were separated and got transferred to other court. Mr. Kanani submitted that in C.C. No.36982 of 2015 and C.C. No.36983 of 2015, the Addl. Sr. Civil Judge, & CJM while convicting the petitioner, has not clarified whether the sentences would run concurrently or consecutively, though both cases were tried together between the same parties for same transaction, thus have to undergo two sentences one after another for the same offence, which is discriminative in nature. Further contended that the court below erred in directing to run the sentences consecutively, while convicting the petitioner in C.C. No.36984 of 2015 and C.C. No.36985 of 2015, as before both the Courts below, there were same set of evidence in the form of oral as well documentary. Mr. Kanani, learned advocate for the petitioner raised the ground that the Courts below have failed to appreciate that it is the discretion of the Court to direct the sentences to run concurrently, if the offences and the transactions are same while considering the provisions in terms of section 427(1) of the Cr.P.C. Section 138 of N.I. Act, 1881 is bailable, non-cognizable and compoundable. It provides for maximum two years of imprisonment and if the petitioner is made to undergo sentences consecutively in all the four cases, then it would result in keeping the petitioner behind bar for a Page 5 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT period beyond what is contemplated under Section 138 of the N.I. Act, 1881, which should have been cogitated by the trial Court Judges, contended Mr. Kanani.
4.2 Relying on the decision in case of Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention) Ahmedabad & Anr., reported in (1988) 4 SCC 183, Mr. Kanani, submitted that the basic rule of thumb over the years has been the single transaction rule for concurrent sentences.
4.3 Mr. Kanani, learned advocate for the petitioner, also relied upon the authorities in case of Senaul S/o. Afsar Shaikh Vs. State of Gujarat, reported in 2019 (1) GLH 738, and in case of Shyam Pal Vs. Dayawati Besoya And Another, reported in (2016) 10 SCC 761, to further contend that the petitioner is not in a position to challenge the judgments or deposit the mandatory initial amount in an appeal due to financial problems.
5. Mr. A.K. Sakunde, learned advocate with Ms. Hiral Shah, learned advocate for respondent no.2, contended that the transactions between the same parties were four separate transactions. The petitioner had issued four Cheques of different amount and of different banks, which were returned with endorsement 'funds insufficient'. The respondent no.2 thereafter issued four notices to the petitioner and demanded the due amount. Therefore, it is proved that it was not a single transaction, but four different transactions between the same parties. He submits that respondent no.2 filed separate cases for all four transactions, as the petitioner had not complied as per Page 6 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT the notice or even after first summons issued by the courts below.
5.1 Mr. Sakunde, learned advocate for the respondent no.2, stated that the Cheques were submitted to the bank within statutory period and notices were issued to the petitioner as provided under law; however the petitioner could not make the payment within prescribed period. Further, submitted that all the requirements as per section 138 (a) (b) and (c) have been proved by the respondent no.2, amounting to offence under section 138 of the N.I. Act, 1881. The complaints have been filed within the abiding limits.
5.2 Mr. Sakunde, learned advocate, contended that all throughout the trial, the petitioner never showed his willingness to discharge his financial liabilities towards the respondent no.2 by paying debt, nor has shown his willingness to pay the due amount as per the courts orders, the petitioner has come before this Court with false claims suppressing material facts. Mr. Sakunde submits that the petitioner ought to have filed an appeal before the appropriate forum before approaching this Court. The evidence in regard to dishonour of the Cheques are available, the petitioner committed the said offence with intention to cheat the respondent no.2 which facts have been proved in the court of law. He submits that the amount of claim, transactions, claim process and the judgments of the courts below are different for each transaction; however, the petitioner ought to have prayed for merger of the cases, when the trials initiated.
Page 7 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020R/SCR.A/5623/2020 JUDGMENT 5.3 Mr. Sakunde, learned advocate for the respondent
no.2 to support his submissions relied upon the following authorities:
(i) In case of G. Saravanan Vs. J. Sankaranarayanan, rendered by the Madurai Bench of Madras High Court in Crl.O.P (MD) No.14056 of 2019;
(ii) In case of State of Punjab Vs. Madan Lal, reported in (2009) 5 SCC 238;
(iii) In case of State of Punjab Vs. Ranjit Kaur, reported in 2020 (1) MWN (Cr.) 161 (SC).
5.4. Mr. Sakunde, learned advocate for the respondent no.2, therefore, submitted that the judgments and orders of the courts below are just and proper and this Court may reject the petition with direction to the petitioner to pay the compensation amount as mentioned in the judgments and orders of the courts below.
6. Heard learned advocates for both the sides and perused the material produced on record. The short question falls for consideration and decision is, whether this Court called upon to exercise inherent power under Section 482 of the Cr.P.C., pass an order for sentences in four different cases to run concurrently invoking section 427 of Cr.P.C.?
6.1 Section 482 of the Cr.P.C. begins with the words 'nothing in this Code', which means it is an overriding provision, none of the provisions of the Code limits or restricts the inherent powers. The guidelines for exercising said power is provided in section 482 itself i.e. to prevent abuse of process of any court or Page 8 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT otherwise to secure the ends of justice. Section 482 confer no new power on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of process of any court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to, if there is specific provision in the Code for redressal of grievances of the aggrieved party. It should be exercised sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the Code.
6.2. In case of Madhu Limaye Vs. State of Maharashtra, reported in AIR 1978 SC 47, the Apex Court laid down certain governing principles to exercise authority under section 482 of Cr.P.C. by High Court. They can be summarized as under:
(i) Power is not to be resorted, if there is specific provision in the code of criminal procedure for redressal of grievances of the person aggrieved;
(ii) It should be exercised sparingly only to prevent abuse of process of any court or otherwise to secure the ends of justice, and
(iii) It should not be exercised against the express bar of law.
6.3 By keeping these parameters to exercise the inherent jurisdiction of High Court saved under section 482 of Cr.P.C., the issue under consideration deserves to be examined.
6.4 The Hon'ble Supreme Court in case of M.R. Kudva Vs. State of Andhra Pradesh, reported in (2007) 2 SCC 772, held that the High Court cannot exercise its inherent jurisdiction Page 9 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT under section 482 Cr.P.C. to order that, sentences awarded in two different cases shall run concurrently under Section 427 Cr.P.C. It was also held that power under Section 427 Cr.P.C. can only be exercised by the Court, while exercising jurisdiction, as appellate Court or revisional Court. The Hon'ble Supreme Court in this case was adjudicating an order passed by the High Court on an application preferred under Section 427 Cr.P.C. It was held as under:
" The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal. Section 482 of the Code was, therefore, not an appropriate remedy having regard to the fact that neither the Trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court."
7. There is subtle distinction between Section 427(1) and Section 427(2) of the Cr.P.C. Section 427(2) is a discretion to the prison authorities to treat two life imprisonments as concurrent and there is no scope for court's charity, since it is a legislative guarantee. The Courts cannot take away these rights, nor the jail authorities deny the same to the prisoner. The sub- section is clear; the prisoner has not to invoke any jurisdiction Page 10 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT be it under section 482 Cr.P.C. or under Article 226 of the Constitution of India and pray for mercy for two life sentences to run concurrently. While under Section 427(1), discretion to make the sentences to run consecutively or concurrently would have to be exercised by the Court, to direct the sentence of imprisonment on a subsequent conviction to run concurrently with the previous sentence, if the accused is already undergoing a sentence of imprisonment. Section 427(1) reads as:
"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"
7.1 The legislative intent obviously appears that the person already undergoing a sentence of imprisonment is subsequently convicted and sentenced for another offence, the sentence awarded under the subsequent conviction shall not be to commence till after the expiry of the sentence which he is already undergoing. Section 427(1) engrafts an exception to this general rule by way of discretion granted to the Court regarding the subsequent conviction. It is equally well established that the inherent power under Section 482 Cr.P.C. is to be exercised to do the right and to undo a wrong in the course of administration of justice, which should be exercised sparingly for ends of justice and not as a matter of routine.
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7.2 Relying upon the judgment of M.R. Kudva (supra), a
full Bench of the High Court of Punjab & Haryana in case of Jang Singh Vs. State of Punjab, reported in 2008 (1) R&R (Criminal), held that the power to make sentences concurrent under Section 427 Cr.P.C. cannot be exercised by the Court under Section 482 Cr.P.C. The Division Bench sought guidance from the larger Bench in following terms:
"It is clear from these judgments (supra), that though the Court has discretion to covert consecutive sentences into concurrent when two different offences have been committed, but the principles, method and in what manner this judicial discretion is to be exercised, has not been laid down."
7.3 The full Bench after examining the entire issue settled the principles for exercising discretion under Section 427 Cr.P.C., as follows:
"It may, thus, emerge that discretion to make the sentences to run consecutively or concurrently would be governed by different consideration, like facts of each case, nature and character of the offences, criminal history sheet and record offender, his age, sex. In our view, these considerations would appear relevant for the exercise of discretion by Section 427(1) Cr.P.C. It is not possible to exhaustively lay down all the factors that may be relevant to be taken into Page 12 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT consideration and basically it would depend upon facts of each case to be so noted by the Court while exercising its discretion in this regard. It may, however, need to be noted that normal rule under Section 427 Cr.P.C. appears to be consecutive sentences. It is thereafter discretion is given to the sentencing Court to direct concurrency. It may also have to be kept in view that if principle of concurrency is applied in case where the offender is habitual it may repel the very basic and the normal rules as laid down in Section 427 Cr.P.C. If such principles are universally applied unmindful to such consideration of the offender being habitual, then it may lead to hostile discrimination negatively because then it would amount to giving similar treatment to a normal as well as a habitual offender. Accordingly, segregation of the habitual offender by making them to undergo sentences consecutively can also be accepted as principle."
7.4 The full Bench while laying down the principles to exercise discretion under Section 427 Cr.P.C., relying upon the observations made in M.R. Kudva (supra), held that the discretion as per Section 427 Cr.P.C. is available with the trial Court, appellate Court or the revisonal Court, but not to the High Court which exercising powers under Section 482 Cr.P.C.
7.5 Thus, if the trial Court is silent and has not given any direction for the sentence to run concurrently, it will run only consecutively as the normal rule under Section 427(1) is for consecutive sentence. Even in view of Section 31 of Cr.P.C., the normal rule is that the sentence should be consecutive unless Page 13 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT the Court directs the same to run concurrently. Even, there is no provision in the Code for directing imprisonment in default of payment fine to run concurrently with the substantive sentence of imprisonment awarded for any other offences in the same Court or at different trial.
8. In the case of Senual S/o. Afsar Shaikh Vs. State of Gujarat, reported in 2019 (1) G.L.H. 738, this Court in Special Criminal Application No.3006 of 2018, referred to the decision in case of V.K. Bansal Vs. State of Haryana, reported in (2013) 7 SCC 211, to observe therefrom that the question that fell for determination of the Supreme Court in the said case was whether the High Court was right in declining the prayer made by the appellant for a direction in terms of Section 427 read with Section 482 of the Code for the sentences awarded to the appellant in connection with the cases under Section 138 of the Negotiable Instruments Act, filed against him, to run concurrently. Para 10 of the said judgment reads thus:
"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 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 Page 14 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any strait jacket 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. 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 @ Himla Bhuriya and Ors. v. State of Gujarat and Ors. 2007 Crl.L.J. 612 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."
8.1 Mr. Kanani, learned advocate, placed reliance on the case of Shyam Pal Vs. Dayawati Besoya And Another (supra) to fortify his submission, but the judgment of the Hon'ble Supreme Court would not be of much avail to the petitioner, since the Page 15 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT matter had travelled to the Apex Court by way of appeal, after the High Court of Delhi sustained the conviction under Section 138 of N.I. Act, 1881, as awarded by the trial Court and affirmed in appeal by the District and Sessions Judge, Saket Court, New Delhi. The arguments before the Apex Court centered around sentence alone. Para 13 and 14 of the said judgment observe as:
"(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 vs. State of Haryana and Another (2013) 7 SCC 211 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 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."
9. Mr. Sakunde, learned advocate for the respondent no.2 contended that when the order of conviction was passed on Page 16 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT 07.02.2019, the petitioner was not undergoing any sentence of imprisonment, thus the trial Court was not required to consider the provision of Section 427 Cr.P.C. It is not possible to accept the said contention since a person sentenced to imprisonment must, for the purpose of section 427, be deemed to be undergoing that sentence from the very moment the sentence is passed. The accused may be on bail or in custody in the earlier case at the time of passing of the subsequent sentence. Literal construction on the terminology 'undergoing a sentence of imprisonment', would lead to absurd results specially where two sentences are awarded one after the other on one day in two different trials. Either the judge would not exercise the discretion only because in the earlier case convict had not been inside the jail for some time and call him back immediately to pronounce judgment in the second case. Such absurd and forceful situation could not be said to have been intended by the legislative. It is not obligatory for the trial Court to direct in all cases that the subsequent sentence shall run concurrently with the previous sentence. The omission in the judgment to direct the sentences to run concurrently would be an indication that the Court intended that the sentence shall be consecutive. The trial Court by invoking the provisions of Section 427(1) can give the requisite direction contemplated by the said section. The appellate Court on examination of the reasons which led the trial Court to decline the prayer of the accused and on finding the reasons given being not in consonance with the exercise of judicial discretion can grant the necessary relief, even on dismissing the appeal, maintaining the conviction and sentence.
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10. In case of Mohd. Akhtar Hussain Vs. Assistant Collector Of Customs, reported in AIR 1988 SC 2143, the Apex Court held that the basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences, but has also observed that this rule has no application if the transaction relating to offence is not the same or the facts constituting the offence are quite different. Thus, where there are different transactions, different crime numbers and cases have been decided by different judgments, concurrent sentence cannot be awarded under section 427 of Cr.P.C. The contention of learned advocate Mr. Kanani, that the reason to invoke Section 427 in the inherent jurisdiction of this Court would be that the cause of action in all the four cases would be same, since the Cheques were given for a single transaction. The said contention does not succeed merits, as the cause of action for the prosecution in respect of dishonor of a cheque arises only if the drawer commits default in making payment within the stipulated period, after the notice as contemplated with proviso
(b) of Section 138 of N.I. Act, 1881 in respect of each tender and the non-payment of the drawee bank on the ground that the balance amount in the account of the drawer is insufficient to honour the Cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the drawee bank. Each tender of a cheque and its dishonour gives rise to separate cause of action subject to a condition that separate notices are issued in respect of each of these Cheques. The payee is not prevented from combining the causes of action by covering all the instances in a single notice to consider all transactions covered by the notice as single transaction, permitting a single trial. However, in case where Cheques issued on different dates, Page 18 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT presented on different dates and separate notices are issued in respect of each default, the transaction cannot be held to be a single transaction, which has occurred in the present case on hand.
11. The Division Bench of Kerala High Court in case of Chacko Vs. State of Kerla, reported in 2003 (4) R.C.R. (Criminal) 841, held that Section 427 is positive when a person undergoing a sentence for life is sentenced subsequently for life imprisonment, subsequent sentence shall run concurrently and no separate order is necessary. The Court also went into the question whether direction in regard to execution of sentence could subsequently be passed while exercising jurisdiction under Section 482 Cr.P.C. By referring to the provisions of Section 362, the Court held that this Section will also support the view that even if the Court takes an erroneous view, it cannot be corrected by a petition under Section 482 Cr.P.C. In this regard the judgment in case of Sarroj Devei Vs. Pyare Lal, reported in AIR 1981 SC 736, may also be relevant in which it is held that inherent powers under Section 482 Cr.P.C. cannot be invoked for reviewing the earlier order, as it is specifically prohibited under Section 362.
11.1 The inherent power is to be exercised in exceptional cases and even then carefully and with caution when there is no other remedy which can be effectively availed of. The litigant cannot be permitted to twist the process of law to self-serve his purpose by skipping the statutory provision available to him to redress his grievance. The petitioner had the right to file appeal against the conviction where the appellate Court could have the Page 19 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT opportunity to exercise discretion under Section 427 Cr.P.C. to give such direction after taking into consideration the facts of the case while passing the substantive sentence. Here in the instant case, the petitioner has not preferred any appeal against the order of conviction, therefore, no further challenge under section 397(1) of the Cr.P.C. for the High Court to find out the correctness, legality or propriety of any finding, sentence or order rendered or passed. The prisoner can invoke the inherent jurisdiction of this Court under Cr.P.C. in a case where both the trial Court and the first Appellate Court or the Revision Court, as the case may be, failed to give benefits under Section 427(1) Cr.P.C. in the judgment. Had either the trial Court, appellate Court or the revisional Court, consciously applied its mind under Section 427(1) Cr.P.C. and denied the benefits to the prisoner, then the prisoner cannot invoke Section 482 Cr.P.C. to once again review that portion in the judgment, for that would be a bar under Section 362 Cr.P.C.
11.2 In the given case, the petitioner by giving four different Cheques of different amount of different dates by its dishonour, has ruled out the consideration of single transaction. Under exercise of inherent power, this Court would have no scope to even enter into merits of the case nor would be analysing or reassessing the evidence adduced by the parties to examine whether the Cheques issued were under single transaction. Such fact finding could be done by appellate Court where the conviction and sentence so imposed could be challenged and subsequently before the revisional Court. The legal position favours the exercise of the discretion to the benefit of the prisoners, however the power to be exercised under Page 20 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020 R/SCR.A/5623/2020 JUDGMENT Section 427 Cr.P.C. where the prosecution is based on single transaction which certainly would have to be on judicial lines and not in a mechanical and pedantic manner; it would depend on the nature of offence and attending facts and circumstances.
11.3 Efficacious alternative remedy by way of an appeal or revision were available to the petitioner, where the Court taking into consideration fact and circumstances of the case could have exercised the power granted under Section 427(1) Cr.P.C. keeping in mind, that the deterrent effect of the sentence is not lost; equally examining that the sentences should not be directed to run concurrently, if to do so, would make the sentences ineffective or the crime inconsequential and if several sentences are allowed to run concurrently the crime may go unpunished.
12. The petitioner has accepted the sentences and has chosen not to prefer an appeal or revision against the order of conviction and sentence passed upon him by the trial Court. In addition to the sentence of imprisonment, a direction is given to pay the amount of the Cheque to the complainant by way of compensation under Section 357 of Cr.P.C. The petitioner has chosen to suffer imprisonment instead of discharging his liability. Alternative remedy is available to the petitioner, as provided in the Code of Criminal Procedure, thus this Court does not have reason to entertain the petition.
13. In the result, petition fails and is dismissed accordingly. Rule is discharged.
(GITA GOPI,J) MARY VADAKKAN/PANKAJ Page 21 of 21 Downloaded on : Sun Dec 06 05:28:02 IST 2020