Rajasthan High Court - Jaipur
Ashutosh Sharma S/O Sh. Meghnath Sharma vs State Of Rajasthan on 11 March, 2022
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 6799/2021
Ashutosh Sharma S/o Sh. Meghnath Sharma, Prop Righter M/s
Akansha Engineering Company, Resident Of 24 Swarn Vatika,
Badharna, Near Bsnl, Vishwakarma Ind Area, Jaipur And R/o T2-
A, 73, Sahyog Apartment-2, Sector-6, Vidhyadhar Nagar, Jaipur.
302023 ( Petitioner Presently Is Confined At Central Jail- Jaipur).
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
Connected With
S.B. Criminal Miscellaneous (Petition) No. 6669/2021
Ashutosh Sharma S/o Sh. Meghnath Sharma, Prop Righter M/s
Akansha Engineering Company, Resident Of 24 Swarn Vatika,
Badharna, Near Bsnl, Vishwakarma Ind Area, Jaipur And R/o T2-
A, 73 Sahyog Apratment-2, Secor -6,vidhyadhar Nagar,jaipur.
302023 (Petitioner Presently Is Confined At Central Jail- Jaipur).
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
S.B. Criminal Miscellaneous (Petition) No. 6670/2021
Ashutosh Sharma S/o Sh. Meghnath Sharma, Prop Righter M/s
Akansha Engineering Company, Resident Of 24 Swarn Vatika,
Badharna, Near Bsnl, Vishwakarma Ind Area, Jaipur And R/o T2-
A, 73 Sahyog Apratment-2, Secor -6,vidhyadhar Nagar,jaipur.
302023 (Petitioner Presently Is Confined At Central Jail- Jaipur).
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Mr. Neeraj Joshi
For Respondent(s) : Mr. Sanjeev Kumar Mahala, PP
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HON'BLE MR. JUSTICE FARJAND ALI
Judgment
DATE OF RESERVED: 08/03/2022
DATE OF PRONOUNCEMENT: 11/03/2022
BY THE COURT:
The instant criminal misc. petition has been preferred on behalf of the accused-petitioner Ashutosh Sharma under Section 482 r/w 427 Cr.P.C. for issuance of appropriate directions to the authorities regarding the concurrency of sentence passed in three cases by different courts.
Heard learned counsel for the petitioner, learned Public Prosecutor for the State and gone through the material made available on record.
Bereft of elaborate details, the brief facts necessary for the disposal of the instant criminal misc. petition are that the petitioner was tried and then convicted in Criminal Complaint No. 408/2018 (300/15) vide judgment dated 30.06.2018 passed by learned Special Metropolitan Magistrate (N.I. Act) No. 19, Jpr.
Metropolitan wherein he was directed to suffer a sentence of 1 year simple imprisonment and fine of Rs.4,50,000/- for offence under Section 138 of Negotiable Instruments Act. In case of default in payment of fine, the petitioner was directed to further undergo 6 months' simple imprisonment. Aggrieved by the above mentioned decision, Criminal Appeal No. 31/2018 was preferred on behalf of the accused-petitioner and the learned Additional District & Session Judge No. 02, Jpr. Metropolitan was pleased to decide the appeal vide judgment dated 22.04.2019 whereby the conviction of the petitioner was maintained. However, the sentence in default of payment of fine was reduced from 6 months (Downloaded on 11/03/2022 at 09:29:27 PM) simple imprisonment to 3 months simple imprisonment. The sentence and fine, as imposed by the trial court, have been maintained.
The second case against the accused-petitioner, for offence under Section 138 of the N.I. Act, was filed before Special Metropolitan Magistrate (N.I. Act) No. 05, Jpr. Metropolitan. The petitioner was tried and convicted in this case as well, vide judgment dated 26.08.2019 and he has been directed to suffer 1 year simple imprisonment and fine of Rs.1,35,000/-. In case of default of payment of fine, he would have to further undergo 02 months' simple imprisonment. Aggrieved by the aforesaid judgment, the accused-petitioner filed Criminal Appeal No. 110/2019 (C.I.S. No. 1520/19) before the learned Additional Session Judge (Women Atrocity cases) No. 02, Jpr. Metropolitan, whereby the conviction of the petitioner was affirmed, as it is, with no change whatsoever in the sentence, fine and the sentence in default of payment of fine, vide judgment dated 02.03.2020.
The accused-petitioner failed to pay the loan in yet another case and Criminal Complaint No. 22657/2014 was filed against the petitioner into the bargain. The learned Special Metropolitan Magistrate (N.I. Act) No. 19, Jpr. Metropolitan tried the case and convicted the petitioner vide judgment dated 03.09.2019 and he has been directed to suffer 2 years' simple imprisonment and fine of Rs.22,76,220/- for offence under Section 138 of the N.I. Act. In case of default of payment of fine, he would have to further undergo 06 months' simple imprisonment. Disgruntled by the aforementioned judgment, the accused-petitioner filed Criminal Appeal No. 1552/2019 (C.I.S. No. 1520/19) before the learned Additional Session Judge (Women Atrocity cases) No. 01, Jpr. Metropolitan, whereby the conviction of the petitioner was upheld. However, the sentence was reduced from 2 years' simple imprisonment to 1.5 years' simple imprisonment and the sentence (Downloaded on 11/03/2022 at 09:29:27 PM) for default in payment of fine was also reduced from 6 months' simple imprisonment to 4 months' simple imprisonment. But, the amount of fine was directed to remain the same.
The maximum term of imprisonment as awarded against the petitioner is 1.5 years with fine. As a matter of fact, all the three cases are related to default of payment of loan via cheques wherein one cheque was returned on note of account being closed and the other two cheques were returned on note of funds being insufficient. Therefore, three separate cases were lodged.
As per the records of the cases and if the date of the decision of first appeal is taken into account, the petitioner has suffered sentence of more than 2 years (2 years, 10 months and 10 days to be exact) till date as he is in custody since 22.04.2019. As per the Jail Rules, in absence of any specific order, regarding sentence to run concurrently, the prisoner has to serve the sentence of first case and on completion thereof, the sentence of second case and again on completion thereof, the sentence of third case will commence. In other words, the prisoner would be counted in custody in the case in which he is convicted and sentenced and directed to suffer sentence on first occasion, and only after completion of the sentence as awarded in the first court judgment, the sentence of the second case would run thereafter and then so on.
Here, in these three cases, as per the mandate contained in Section 427 of the CrPC which is directory in nature, no order has been passed that whether sentences in all three cases will run concurrently or consecutively. The petitioner is facing incarceration after his conviction in three cases but his period of sentence is being counted one after the other. Interestingly, even in the two subsequent cases, it is not mentioned that when the order of sentence would become operative and effective. The maximum sentence as awarded to him is 1.5 years simple imprisonment only which he has undergone. The details of the cases are as under:-
(Downloaded on 11/03/2022 at 09:29:27 PM)S.No. Case No. Court Title Date of Punishment Fine decision
1. Criminal Special Metropolitan Vinay Khandelwal v. 30.06.2018 138 N.I. Act Rs. 4, Complaint Magistrate (N.I. Act) Ashutosh Sharma 1 year S.I. No. No. 19, Jpr.
408/2018 Metropolitan
(300/15)
Appeal Criminal Additional District & - 22.04.2019 138 N.I. Act Rs. 4,
Appeal No. Session Judge No. 02, 1 year S.I.
31/2018 Jpr. Metropolitan
2. Criminal Special Metropolitan Vishesh Bhushan 26.08.2019 138 N.I. Act Rs. 1,
Complaint Magistrate (N.I. Act) Khandelwal v. 1 year S.I.
No. no. 05, Jpr. Ashutosh Sharma
884/2015 Metropolitan
Appeal Criminal Additional Session - 02.03.2020 138 N.I. Act Rs. 1,
Appeal No. Judge (Women 1 year S.I.
110/2019 Atrocity Cases) No.
(C.I.S. No. 02, Jpr. Metropolitan
1520/19)
3. Criminal Special Metropolitan Manish v. Ashutosh 03.09.2019 138 N.I. Act Rs. 22
Complaint Magistrate (N.I. Act) Sharma 2 years S.I.
No. No. 19, Jpr.
22657/2014 Metropolitan
Appeal Criminal Additional Session - 22.12.2020 138 N.I. Act Rs. 22
Appeal No. Judge (Women 1.5 years S.I.
1552/2019 Atrocity Cases) No.
01, Jpr. Metropolitan
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It is deemed appropriate to reproduce Section 427 of the CrPC, which reads as under:
"427. Sentence on offender already sentenced for another offence.--
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence 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."
A coordinate bench of this court, in a similar case titled Laxmi Narayan vs. State of Rajasthan and Ors., rendered in S.B. Criminal Misc. Petition No. 563/2017, has discussed the decisions of Hon'ble Supreme Court rendered in State of Punjab v. Madan Lal, AIR 2009 SC (Supp) 2836, V.K. Bansal v.
State of Haryana & Ors., 2013 Cr.L.J. 3986, Shyam Pal v.
Dayawati Besoya & Anr., AIR 2016 SC 5021 and in Ammavasai & Anr. v. Inspector of Police & Ors., AIR 2000 SC 3544, and has held as under:-
"As per sub-section (1) of Section 427 CrPC when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs (Downloaded on 11/03/2022 at 09:29:27 PM) that the subsequent sentence shall run concurrently with such previous sentence:
As per second proviso to sub-section (1) of section 427 CrPC where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
Sub-section (2) of section 427 CrPC provides that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
From the above, it can be gathered that the intention of legislature is that even the life convicts have been held entitled to benefit of subsequent sentence, being run concurrently, be it life term or of any lesser term then the different yardstick cannot be applied for those persons, who have been awarded sentence or lesser duration than life unless there are compelling reasons to do so. In this case, I do not see any compelling reason to order that all the sentences awarded to the petitioner in all 14 cases would run consecutively."
In another recent judgment titled Benson v. State of Kerala, rendered in (2016) 10 SCC 307, the Hon'ble Apex court has held as under:-
(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." In terms of sub-section (1) of Section 427, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Going by this normal principle, the sentence chart indicated in the communication dated 27.05.2016 is quite correct.
However this normal rule is subject to a qualification and it is within the powers of the Court to direct that the subsequent sentence shall run concurrently with the previous sentence.
In V.K.Bansal v. State of Haryana and Another[1] it was stated by this Court:
(Downloaded on 11/03/2022 at 09:29:27 PM)"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." This Court then went on to club various crimes in respect of which sentences were imposed upon the appellant therein in three groups; i) the first having 12 cases, ii) the second having 2 cases and iii) the third having a single case. This Court directed that substantive sentences within first two groups would run inter se concurrently and the substantive sentences in first two groups and that in respect of the case in the third group would run consecutively. The benefit was confined only in respect of substantive sentences and no qua sentences in default.
In the first instance, cheque bearing no. 117245 was given to the complainant of Criminal Complaint No. 408/2018 (300/15) by the petitioner on 11.11.2012; which was returned on 23.11.2012. In the second instance, cheque bearing no. 462870 was given by the petitioner to the complainant of Criminal Complaint No. 884/2015 on 24.01.2014; which was returned on 04.04.2014. Lastly, the petitioner gave the cheque bearing no. 958453 to the complainant of Criminal Complaint No. 22657/2014 on 19.11.2012; which was returned on 27.11.2012, in the third instance of borrowing. All the three cases are related to dishonourment of cheque as the petitioner failed to maintain his account to honour the cheques given by him to the borrowers in the three cases.
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It appears that the financial condition of the accused- petitioner is not good now and therefore, he failed to maintain sufficient amount in the account. His pitiable economic condition has also forced this court to adopt a lenient outlook on humanitarian grounds while considering granting of relief in the present matter.
Having considered the facts & circumstances of the case, the offence involved, the sentences awarded and the period of detention the petitioner has undergone till date, this court is of the considered view that it would not be inconsistent in the administration of criminal justice, if the petitioner is allowed the benefit of discretion contained in Section 427 of the CrPC with a view to meet the ends of justice. However, the direction for concurrent running of sentences would be limited only to the substantive sentences, the petitioner would have to pay the amount of fine and if he fails to do so, he would have to further undergo sentence as directed by the concerned court below/appellate court.
Accordingly, the instant criminal misc. petition is allowed and it is directed that the punishments inflicted upon the petitioner in Criminal Regular Case No. 884/2015 [Criminal Appeal No. 110/2019 (C.I.S. No. 1520/19)] decided on 26.08.2019 and in Criminal Regular Case No. 22657/2014 [Criminal Appeal No. 1552/2019] decided on 03.09.2019 shall be held to run concurrently with his previous punishment as inflicted upon him in Criminal Regular Case No. 408/2018 (300/2015) [Criminal Appeal No. 31/2018 passed by ASJ, Jpr. vide judgment dated 22.04.2019] decided on 30.06.2018. Meaning thereby, the custody of the (Downloaded on 11/03/2022 at 09:29:27 PM) accused petitioner shall be counted from 22.04.2019 and all three sentences shall run concurrently from the date of passing of their sentence in each case. It is made clear that as a matter of fact, the petitioner has served the maximum sentence of 1.5 years as modified by the learned Additional Session Judge (Women Atrocity cases), Jpr. Metropolitan in appeal for offence under Section 138 of N.I. Act, the petitioner has become entitled to be released in these two matters provided he has deposited the amount of fine or served the sentence in default thereof.
The instant criminal misc. petition is allowed in the above terms.
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