Saikrupa Associates And ... vs Additional District Consumer ...
2023 Latest Caselaw 2652 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                   NAGPUR BENCH : NAGPUR.



                 CRIMINAL WRIT PETITION No. 85/2023.


Saikrupa Associates and Developers,
through its Partner Dharmendra
B. Reddy, Aged 50 years, Office at
Near Bharat Gas, Nari Road, Teka Naka
Nagpur, Maharashtra.                      ...          PETITIONER.



                                VERSUS


1.Additional District Consumer Commission,
Civil Lines, Nagpur,
Maharashtra - 440001.

2.Nagpur Central Jail,
Through its Superintendent,
Nagpur.

3.Smt.Rajeshbai Ramprakash Yadav,
Aged about 60 years, Occupation -
Housework, Navin Futala Talav,
Amravati Road, Nagpur.

4.Smt. Usha Indrajit Yadav,
Aged about 32 years, Occupation
 Housework, Navin Futala Talav,
Amravati Road, Nagpur.                   ...      RESPONDENTS.



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                             ------------------------
              Mr. G.I. Dipwani, Advocate for the Petitioner.
           Mrs.N. Tripathi, A.P.P. for Respondent Nos. 1 and 2.
              None for Respondent Nos. 3 and 4 - Served.
                            -------------------------


                                CORAM : VINAY JOSHI AND
                                         BHARAT P. DESHPANDE, JJ.

DATE : MARCH 20, 2023.

ORAL JUDGMENT (PER VINAY JOSHI, J.) :

Rule. Rule made returnable forthwith. Heard finally by

consent of the learned Counsel present for parties.

2. This petition under Article 226 of the Constitution of

India read with Section 482 of the Code of Criminal Procedure, in

substance seeking directions to make two sentences concurrent. The

petitioner is a developer who has entered into agreement to sale in

respect of open plots with different buyers. Since the petitioner has

not executed sale deed, two buyers namely Smt.Rajeshbai Yadav

and Smt. Usha Yadav (Respondent nos. 3 and 4), have filed

consumer complaints against him before the District Consumer

Redressal Forum. Both complaints were allowed, directing the

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petitioner to execute respective sale deeds or in the alternative

refund the entire consideration along with interest.

3. The petitioner failed to comply with the directions of the

Consumer Forum in two complaints namely CC/15/98 and

CC/15/99. Since the orders of the Consumer Forum have not been

complied with, both consumers invoked the penalty clause in terms

of Section 27 of the Consumer Protection Act, by filing two

applications bearing EA/16/49 and EA/16/50. In both proceedings

it has been held that the petitioner has committed default in

complying with the orders of the Consumer Forum, and accordingly

vide even dated orders of 28.11.2018 imposed a punishment of

imprisonment of one year along with fine of Rs.10,000/-, in each

application.

4. Being aggrieved, the petitioner has filed two appeals

before the State Consumer Disputes Redressal Commission, however,

both appeals were dismissed. The petitioner was already taken in

custody on 04.02.2022, and till date he is in jail.

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5. It is the contention of petitioner that he has been

convicted in two proceedings on the same date i.e. 28.11.2018 in

which by separate orders punishment was imposed to undergo

simple imprisonment in each proceedings, as stated. According to

the petitioner till date he has undergone the imprisonment of more

than one year and therefore, he is liable to set free.

6. The jail authorities made communication dated

01.12.2022 with the District Consumer Redressal Forum seeking

guidance as to whether both sentences shall be treated to run

concurrently or one after other, so as to take appropriate action. In

response, the District Consumer Redressal Forum vide its

communication dated 13.12.2022 informed that the petitioner was

convicted in two separate cases by separate orders. Moreover, there

are no orders that the sentence shall run concurrently, and therefore,

it shall be treated that sentences shall run one after another. Being

aggrieved by the said communication, the petitioner has filed an

appeal to the State Commission, however, the appeal was not

entertained for the reason that there is no order of the District

Consumer Forum, thus appeal would not lie against the letter or

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communication.            In the wake of said position, the petitioner has

invoked writ jurisdiction for ventilating his grievance.

7. The learned Counsel appearing for the petitioner would

submit that the petitioner has already undergone sentence for

imprisonment for more than one year, therefore, he is entitled for

release. It is submitted that the conviction is for non-compliance of

the orders passed by the District Consumer Forum, which cannot be

termed as antisocial or heinous offence so as to deprive him for

getting discretion of the Court. It is submitted that the same District

Consumer Forum while deciding both applications filed under

Sections 27 of the Act has not considered the provisions of Section

427 of the Code of Criminal Procedure about the discretion of the

Authority to make the sentence concurrent. It is pointed out that

both orders of conviction does not bear reasons as to why the

sentence shall run one after another. The learned Counsel

appearing for the petitioner would submit that there is no reason to

deny the discretionary relief in making the sentence concurrent. In

this regard the petitioner has relied on the decision of Supreme

Court in case of Shyam Pal .vrs. Dayawati Besoya and another -

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[2016] 10 SCC 761, wherein the Supreme Court has made two

sentences passed for the offence punishable under Section 138 of the

Negotiable Instruments Act to run concurrently. Reliance is also

placed on the decision of this Court in case of Akash Rashtrapal

Deshpande and others .vrs. State of Maharashtra and others - 2019

All MR (Cri) 3298, wherein the then accused was convicted for the

offence of robbery in 7 different cases. This Court has observed that

though there is a general rule to run the sentence consecutively, but,

the Court has discretion to direct the sentences to run concurrently.

This Court has observed that the trial Court was not aware about its

own discretion as the orders of conviction does not reflect any

discussion on the point. In the circumstances, this Court has

directed to run the substantive sentence concurrently. On the same

lines, reliance is also placed on the decision of this Court in case of

Krishna Venkatesh s/o late N.Vishwanath and others .vrs. Balbhim

Malvankar s/o Tukaram Malvankar and others - Criminal Writ

Petition No.169/2019 dated 11.09.2019 (Goa Bench), wherein

under writ jurisdiction the conviction imposed in 4 separate cases

have been made concurrently.

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8. The learned A.P.P. would submit that the petitioner was

convicted in two different cases. Though both orders of conviction

are passed on the same date, but, the trial Court has not made the

sentence concurrent. Having regard to the nature of accusation, the

sentence are to run consecutively.

9. Reverting to the facts, basically the conviction is for non-

compliance of the orders passed by the District Consumer Forum.

Both original complainants are related to each other. They have

filed two consumer complaints making same allegations that though

agreement of sale about a particular plot was executed, sale was not

completed. True, non-compliance of the orders of District Consumer

Forum attracts penal consequence in terms of Section 27 of the

Consumer Protection Act. However, by no stretch of imagination

non-compliance of the order of the District Consumer Forum can be

construed as an serious or heinous offence. Section 427 of the Code

vests a discretion with the convicting Court to direct that the

sentence shall run concurrently with the previous sentence. In case

at hand, the District Consumer Forum was well aware about both

convictions, since the same forum has passed the even dated orders

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of conviction imposing sentence of one year simple imprisonment

along with fine in each case. Though sentences are simultaneously

passed, however, in technical sense, after pronouncement of first

judgment it is to be construed that at the time of pronouncement of

second judgment, the petitioner was undergoing sentence imposed in

first case. Therefore, on technicalities, applicability of Section 427

[1] of the Code cannot be taken away. The Consumer Forum has not

assigned any reason as to why the sentences are to run one after

another. Though it is a general rule that the sentence should run

consecutively, however, as a matter of course, always they are

directed to be run concurrently. There is no reason to justify the

running of sentence consecutively. The matter relates to the aspect

of curtailing liberty, therefore the action shall be justified by reasons.

10. This Court in case of Abidkhan @ Salman Mukhtar Khan

Pathan .vrs. State of Maharashtra and another - 2014 All MR (Cri)

1719, took a view that though the accused is convicted in three

distinct cases on the same date, it cannot be said that there was no

previous or subsequent conviction. Having regard to the cases

pertaining to offences under Sections 379, 465, 466, 467, 468, 471

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and 420 this Court observed that the trial Court has not considered

the relevant aspect of sentence and filed to exercise the discretion

under Section 427 of the Code, therefore, ordered all the sentences

to run concurrently.

11. In another decision of Supreme Court in case of V.K.

Bansal .vrs. State of Haryana and another - [2013] 7 SCC 211, it is

emphasized that there is no straight jacket formula, but, the Court

shall exercise its discretion judiciously while exercising the powers

under Section 427 of the Code.

12. This is not a case of a hardened criminal or a person who

has committed offence under the Indian Penal Code or under any

Special Act, making the commission of the act itself punishable. The

petitioner was indulging into sale of plots. He has executed

agreement, however, the transaction could not materialize,

therefore, the District Consumer Forum passed a judgment directing

him to complete the transaction, but, since there was non-

compliance of the order, penalty clause under Section 27 of the Act

was invoked by two consumers, which resulted into passing the

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aforesaid sentence.             The petitioner is neither history sheeter nor

offence is of antisocial nature.           We see no reason to deprive the

petitioner from according discretion in making the sentence to run

concurrently. Having regard to the above facts, and especially the

background in which the orders of penalty were passed, we are

inclined to exercise the discretion in favour of the petitioner.

13. In view of above, Writ Petition is allowed. We direct

that both the sentences imposed by the District Consumer Redressal

Forum, Nagpur in EA/16/49 and EA/16/50 dated 28.11.2018 shall

run concurrently. We make it clear that if fine is not paid by the

petitioner, the sentence in default of payment of fine shall run one

after another. The Jail authorities are directed to act accordingly.

14. Rule is made absolute in aforesaid terms with no order as

to costs.

                    JUDGE                            JUDGE




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