Uttarakhand High Court
Priya Arora @ Priya Mishra vs State Of Uttarakhand And Another on 8 September, 2020
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 516 of 2020
Priya Arora @ Priya Mishra ...... Petitioner
Vs.
State of Uttarakhand and Another ..... Respondents
Present:-
Mr. T.P.S. Takuli, Advocate for the petitioner.
Mr. Pratiroop Pandey, A.G.A. alongwith Mr. Sachin Panwar, Brief Holder for the State of
Uttarakhand.
Mr. Akhil Kumar Sah, Advocate for the private respondent/informant.
With
Criminal Misc. Application No. 517 of 2020
Priya Arora @ Priya Mishra ...... Petitioner
Vs.
State of Uttarakhand and Another ..... Respondents
Present:-
Mr. T.P.S. Takuli, Advocate for the petitioner.
Mr. Pratiroop Pandey, A.G.A. alongwith Mr. Sachin Panwar, Brief Holder for the State of
Uttarakhand.
Mr. Akhil Kumar Sah, Advocate for the private respondent/informant.
With
Criminal Misc. Application No. 520 of 2020
Priya Arora @ Priya Mishra ...... Petitioner
Vs.
State of Uttarakhand and Another ..... Respondents
Present:-
Mr. T.P.S. Takuli, Advocate for the petitioner.
Mr. Pratiroop Pandey, A.G.A. alongwith Mr. Sachin Panwar, Brief Holder for the State of
Uttarakhand.
Mr. Akhil Kumar Sah, Advocate for the private respondent/informant.
JUDGMENT
2 Hon'ble Ravindra Maithani, J. (Oral) Common question of law and facts arise in all these petitions, therefore, they are being decided by this common judgment. Since, three petitions are being disposed of together, it would be expedient to look into the facts briefly, of each case, separately.
C-482 No.516 of 2020;-
2. This petition challenges the followings;
(i) Judgment and order dated 26.06.2020 passed in Criminal Revision No. 44 of 2020, Priya Arora @ Priya Mishra Vs. Umesh Tiwari and Another, by the Court of District and Sessions Judge, Nainital, by which, the order dated 15.06.2020 passed in Criminal Case No.450 of 2013, by the Court of Chief Judicial Magistrate, Nainital has been confirmed.
(ii) Order dated 15.06.2020 passed in Criminal Case No.450 of 2013, Umesh Tiwari Vs. Smt. Priya Arora, by the Court of Chief Judicial Magistrate, Nainital. (first case). By this order, an application filed under Section 427 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been rejected.
3. The first case was based on a complaint filed by respondent no.2 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). According to the complaint, the petitioner alongwith her husband, under conspiracy, took loans on various dates in the month of August, 2010 from respondent no.2. They did not repay it and after much insistence, a cheques was given, which when presented was not honoured. A notice was given but payment was not made.
34. The trial of the first case proceeded and the first case was decided on 13.05.2013 and the petitioner was convicted under Section 138 of the Act and sentenced thereunder. An appeal preferred by the petitioner was dismissed, but, an appeal for enhancement of the sentence preferred by respondent no.2, being Criminal Appeal No. 76 of 2013, Umesh Tiwari Vs. Priya Arora was allowed by the Court of Additional District Judge, Nainital on 26.09.2020. The conviction was already upheld, but, the sentence was increased to one year simple imprisonment and a fine of Rs.60,000/-. In default of payment of fine, imprisonment for a further period of one month. It was also directed that the petitioner shall pay Rs.55,000/- as compensation to respondent no.2. It is stated that the conviction of the petitioner was upheld even by the Hon'ble Supreme Court and the sentence imposed remained as such.
C-482 No.517 of 2020;-
5. This petition challenges the followings;
(i) Judgment and order dated 26.06.2020 passed in Criminal Revision No. 43 of 2020, Priya Arora @ Priya Mishra Vs. Umesh Tiwari and Another, by the Court of District and Sessions Judge, Nainital, by which, the order dated 15.06.2020 passed in Criminal Case No.451 of 2013, by the Court of Chief Judicial Magistrate, Nainital has been confirmed.
(ii) Order dated 15.06.2020 passed in Criminal Case No.451 of 2013, Umesh Tiwari Vs. Smt. Priya Arora, by the Court of Chief Judicial Magistrate, Nainital. (second case). By this order, an application filed under Section 427 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been rejected.
6. The second case was based on a complaint filed by respondent no.2 under Section 138 of the Act, According to the complaint, the petitioner alongwith her husband, under conspiracy, 4 took loans on various dates in the month of August, 2010 from respondent no.2. They did not repay it and after much insistence, a cheques was given which when presented was not honoured. A notice was given but payment was not made.
7. The trial of the second case proceeded and the second case was decided on 13.05.2013 and the petitioner was convicted under Section 138 of the Act and sentenced thereunder. An appeal preferred by the petitioner was dismissed, but, an appeal for enhancement of the sentence preferred by respondent no.2, being Criminal Appeal No. 75 of 2013, Umesh Tiwari Vs. Priya Arora was allowed by the Court of Additional District Judge, Nainital on 26.09.2020. The conviction was already upheld, but, the sentence was increased to one year simple imprisonment and a fine of Rs.1,15,000/-. In default of payment of fine, imprisonment for a further period of one month. It was also directed that the petitioner shall pay Rs.1,10,000/- as compensation to respondent no.2. It is stated that the conviction of the petitioner was upheld even by the Hon'ble Supreme Court and the sentence imposed remained as such.
C-482 No.520 of 2020;-
8. This petition challenges the followings;
(i) Judgment and order dated 26.06.2020 passed in Criminal Revision No. 45 of 2020, Priya Arora @ Priya Mishra Vs. Umesh Tiwari and Another, by the Court of District and Sessions Judge, Nainital, by which, the order dated 15.06.2020 passed in Criminal Case No.449 of 2013, by the Court of Chief Judicial Magistrate, Nainital has been confirmed.
(ii) Order dated 15.06.2020 passed in Criminal Case No.449 of 2013, Umesh Tiwari Vs. Smt. Priya Arora, by the Court of Chief Judicial Magistrate, Nainital. (third case). By this order, an 5 application filed under Section 427 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been rejected.
9. The third case was based on a complaint filed by respondent no.2 under Section 138 of the Act. According to the complaint, the petitioner alongwith her husband, under conspiracy, took loans on various dates in the month of August, 2010 from respondent no.2. They did not repay it and after much insistence, a cheques was given, which when presented was not honoured. A notice was given but payment was not made.
10. The trial of the third case proceeded and the third case was decided on 13.05.2013 and the petitioner was convicted under Section 138 of the Act and sentenced thereunder. An appeal preferred by the petitioner was dismissed, but, an appeal for enhancement of the sentence preferred by respondent no.2, being Criminal Appeal No. 74 of 2013, Umesh Tiwari Vs. Priya Arora was allowed by the Court of Additional District Judge, Nainital on 26.09.2020. The conviction was already upheld, but, the sentence was increased to one year simple imprisonment and a fine of Rs.6,75,000/-. In default of payment of fine, imprisonment for a further period of one month. It was also directed that the petitioner shall pay Rs.6,70,000/- as compensation to respondent no.2. It is stated that the conviction of the petitioner was upheld even by the Hon'ble Supreme Court and the sentence imposed remained as such.
11. Heard learned counsel for the parties through video conferencing and perused the record.
12. In fact, after conviction in first case, second case and third case which was confirmed with enhancement of the sentence 6 as stated hereinbefore, an application under Section 427 of the Code was filed by the petitioner in the Trial Court with the request that the sentences in all three cases may be directed to run concurrently and not consecutively. These three applications in all the three cases were rejected on 15.06.2020 by the Trial Court. These orders passed in all the three case were challenged by the petitioner in Revision. They were Criminal Revision No.43 of 2020, Criminal Revision No.44 of 2020 and Criminal Revision No.45 of 2020. All were decided together by the District and Sessions Judge, Nainital on 26.06.2020 and dismissed the revision. These orders dated 15.06.2020 and 26.06.2020 are impugned herein.
13. Learned counsel for the petitioner would submit that loan was taken by the petitioner on different dates from respondent no.2 and it forms part of same transaction, therefore, the petitioner ought to have been given benefit of Section 427 of the Code and the sentences should have been directed to run concurrently. In support of his contention, learned counsel placed reliance on the principles of law, as laid down in the cases of Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and Another, (1988) 4 SCC 183, State of Punjab Vs. Madan Lal, (2009) 5 SCC 238, V.K. Bansal Vs. State of Haryana and Another, (2013) 7 SCC 211 and Benson Vs. State of Kerala, (2016) 10 SCC 307.
14. In the case of Mohd. Akhtar Hussain (supra), the Hon'ble Supreme Court, while interpreting the provision of Section 427 of the Code, held as hereunder;
"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 enactments generally, it is wrong to have consecutive sentences. It is proper and 7 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 the case of Madan Lal (supra), the Hon'ble Supreme Court, in fact, followed the principle of law, as laid down in the case of Mohd. Akhtar Hussain (supra). In the case of V.K. Bansal (supra), the Hon'ble Supreme Court discussed the scope of Section 427 of the Code and observed "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."
16. In the case of Banson (supra), principles of law as laid down in the V.K. Bansal (supra) has been followed.
17. On the other hand, learned counsel appearing for respondent no.2 would very strenuously argued that, in fact, the provision of 427 of the Code cannot be separately taken up in a proceeding under Section 482 of the Code. The provision would have been discussed at a time when the trial was pending or appeals were heard. Learned counsel would also argue that, in fact, the petitioner is in jail in various cases. She was produced in Nainital Court from Tihar Jail; she has a long criminal history, therefore, she should not be given benefit of discretion under Section 427 of the Code. Learned counsel would argue that, in fact, the respondent no.2 is a 65 years old person, who despite having agitated his cause in a court of law did not get even a single penny, even after a decade. In support of his contention, learned counsel for respondent no.2 placed reliance on the principles of law, as laid down in the case of State Vs. K.V. Rajendran and Others, (2008) 8 8 SCC 673, M.R. Kudva Vs. State of A.P. (2007) 2 SCC 772, Neera Yadav Vs. CBI, (2017) 8 SCC 757 and Ankush Shivaji Gaikwad Vs. State of Maharashtra, (2013) 6 SCC 770.
18. In the case of Ankush Shivaji Gaikwad (supra), in fact, Hon'ble Supreme Court has discussed the provisions of compensation to the victim. It is not specifically with regard to application of Section 427 of the Code. In the case of K.V. Rajendran (supra), the Hon'ble Supreme Court discussed reviewing of its own judgment or re-agitating an issue, which has already been decided and in paragraph 22 of it, observed "Section 362 of the Code prohibits reopening of a final order except in the cases of clerical or arithmetical errors."
19. In the case of Neera Yadav (supra), in paragraph 70, the Hon'ble Supreme Court observed "The sentencing Court has the discretion to direct concurrency. The investiture of such discretion, presupposes that it will be exercised on sound principles and not on whims. In the Criminal Procedure Code, there are no guidelines or specific provisions to suggest under what circumstances the various sentences of imprisonment shall be directed to run concurrently or consecutively. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427 (1) Cr.P.C. ...................................................................."
20. In the case of M.R. Kudva (supra), in fact, the Hon'ble Supreme Court discussed the scope of Section 482 of the Code, in cases, when it is invoked for exercise of jurisdiction under Section 427 of the Code and the Court categorically held that "However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave 9 petitions were dismissed. Such an application, in our opinion, was not maintainable. 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."
21. Before any discussion is made, it would be apt to reproduce as to what Section 427 of the Code is. It is as hereunder;
"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."
22. A bare perusal of the above Section reveals that as a general rule, sub-section 1 of it provides that sentences shall run consecutively but the last sentence, after a word "unless" provides that it is the courts' discretion to direct that the subsequent 10 sentence shall run concurrently with any previous sentence. Here is the scope of discretion by the court.
23. First and foremost, it has to be seen as to whether in the independent proceedings, as in the present cases, the scope of Section 427 of the Code may be seen or not. In the case of M.R. Kudva (supra), the Hon'ble Supreme Court categorically held that in separate proceedings, the scope of Section 427 of the Code cannot be looked into. This judgment was delivered on 15.12.2006 by the Bench of two Hon'ble Judges, but, thereafter, in the case of Madan Lal, the three Hon'ble Judges of Hon'ble Supreme Court on 05.03.2009, upheld a judgment of Punjab and Haryana High Court, passed in a proceedings under Section 482 of the Code read with Section 427 of the Code and the prayer in that petition was to the effect that quantum of punishment awarded may be permitted to run concurrently in respect of three convictions and sentences imposed. In fact, categorically in the case of Madan Lal (supra), the Hon'ble Supreme Court did not dealt with as to whether separate proceedings under Section 482 of the Code may be invoked for application of Section 427 of the Code, but, fact remains that an order passed by the High Court in a proceedings under Section 482 of the Code, where the provisions of Section 427 of the Code were sought to be invoked, was upheld. Impliedly, the Hon'ble Supreme Court in the case of Madan Lal (supra) held that separate proceedings under Section 482 of the Code may be taken for invoking the provision of Section 427 of the Code. Not only this, in the case of V.K. Bansal (supra) again, reference has been made to the judgment in the case of Madan Lal (supra) and in the case of V.K. Bansal (supra) also, the matter was taken to Hon'ble Supreme Court, when the High Court declined the prayer for a direction in terms of Section 427 read with 482 of the Code. It impliedly upheld that separate proceedings can be taken under Section 482 of the Code for invoking the provision of Section 427 11 of the Code. Interestingly, in paragraph 13 in the case of V.K. Bansal (supra), reference has been made to a judgment of Hon'ble Allahabad High Court in the case of Mulaim Singh Vs. State, 1974 Criminal Law Journal 1397. In the case of Mulaim Singh (supra), the Hon'ble Allahabad High Court Full Bench, after much discussion held "it would be competent for the High Court in exercise of its inherent power to direct that the sentence of a subsequent conviction to imprisonment may run concurrently with the previous sentence even if the stage for discretion under Section 397 (1) of the Code is over in circumstances, where it would serve either of the three purposes mention in the Sec. i.e. to give effect to any order under the Court or to prevent the abuse of the process of the Court or to otherwise to secure the ends of justice."
24. In view of judgment in the case of V.K. Bansal (supra) and judgment in the case of Madan Lal (supra), which is a Larger Bench judgment than the judgment in the case of M.R. Kudwa (supra) and also subsequent on the point of time, it can be concluded that a separate proceeding under Section 482 of the Code is maintainable for application of Section 427 of the Code. This is one part. The question is whether it is a case fit for directing concurrent sentence in all the three cases.
25. One of the arguments raised on behalf of the respondent no.2 is that, in fact, the petitioner has raised this plea before the Hon'ble Supreme Court when he filed appeal against conviction.
26. On behalf of the petitioner, it is argued that such a plea was not taken, but, the fact remains that neither the SLP nor the appeal filed in three cases before the High Court is before the Court. So, this Court refrains to make any observation as to whether any such plea was taken or not by the petitioner when 12 their appeal was heard by the High Court or when their SLP was heard by the Hon'ble Supreme Court.
27. As stated, as a general rule, the sentences are to run consecutively unless the Court directs that the subsequent sentence shall run concurrently. The question is when the Court directs for running the sentence concurrently. In the case of V.K. Bansal (supra), on which heavy reliance is placed by learned counsel for the petitioner, in paragraph 10 of it, the Hon'ble Supreme Court observed "there is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within a 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."
28. In fact, in the case of Neera Yadav (supra), it has further been discussed by Hon'ble Supreme Court as quoted hereinbefore. In all the three cases, it was the case of respondent no.2 that petitioner took loan from her in the month of August, 2010 and for repayment, issued cheques which were not honoured. Now, in view of the judgment in the case of V.K. Bansal (supra), one thing is clear that this might fall within the definition of "same transaction" and it makes a ground for the petitioner to ask for concurrent running of the sentences. But, can it be done and should it be done, this is the larger question. Whether the petitioner is entitled to get judicial discretion in her favour so as to get the concurrent running of the sentences.
29. On behalf of respondent no.2, it is argued that the petitioner does not deserve judicial discretion in her favour because despite Court's order in all the three cases, she did neither 13 pay the amount of fine, nor did she pay compensation to the respondent no.2, who is an old person of 65 years of age.
30. Sentencing is an area which troubles the Court more than the trial itself. The balance is always made between the conflicting interests. It is this area in which there is large discretion given to the Judges. The purpose of sentencing need not be reiterated. The person who has incurred loss due to offence is also required to be compensated and it is perhaps because of this reason, that in all the three cases, the petitioner was required to pay compensation to respondent no.2, but, she did not pay even a part of it. This is not a small amount. In some cases, the amount of compensation is 6,70,000/-.
31. Having considered all the factors, this Court is of the view that since the petitioner has not paid even a part of the compensation, as directed by the Court, she does not deserve any judicial discretion for permitting the sentences imposed upon her to run concurrently and accordingly, this Court is of the view that the learned Court below on different premises, but, rightly rejected the application filed under Section 427 of the Code. No interference is warranted and all the three petitions deserve to be dismissed.
32. All the three petitions are dismissed.
(Ravindra Maithani, J.) 08.09.2020 Ujjwal