Gujarat High Court
Rafikbhai Husainbhai Pathan vs State Of Gujarat on 2 May, 2025
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Reserved On : 15/04/2025
Pronounced On : 02/05/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 1176 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
Yes
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RAFIKBHAI HUSAINBHAI PATHAN
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR YOGIN A BHAMBHANI(6444) for the Applicant(s) No. 1
NISHITH P ACHARYA(9308) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. By this writ application under Article 226 of the
Constitution of India, the writ applicant has prayed for the
following reliefs;
"(A) YOUR LORDSHIP be pleased to direct that sentence
in both Criminal cases CR. Cases 45/18 and 68/18
imposed by the learned Trial Judge vide JUDGMENT Dt.
10.03.2023 & 29.12.2022 and confirmed by the learned
Appellate Judge in Appeal No.11/23 & 3/23 vide
JUDGMENT Dt. 27.10.2023 may run concurrently u/s.
427(1) of CRPC and the tenure of sentence having
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already come to an end on 23.12.2024 the applicant may
be ordered to be released forthwith from Judicial
Custody.
(B) Pending admission, hearing and final disposal of
this petition, the Hon'ble Court be pleased to direct that
sentence in both Criminal Cases CR. Cases 45/23 and
68/18 imposed by the learned Trial Judge vide JUDGMENT
Dt.10.03.2023 & 29.12.2022 and confirmed by the
learned Appellate Judge in Appeal No.11/23 & 3/23 vide
JUDGMENT Dt. 27.10.2023 may run concurrently u/s.
427(1) of CRPC and the tenure of sentence having
already come to an end on 25.12.2024 the applicant may
be ordered to be released forthwith from Judicial
Custody.
(C) YOUR LORDSHIP be pleased to grant such other and
further relief(s) as deem fit to grant in the interest of
justice."
2. The writ applicant herein is a member of Shri Bagasra
Nagrik Sharafi Sahkari Mandli Ltd. and he obtained a joint loan
from the said Sahakari Mandli in his name as well as in the
name of his wife Smt. Anisha Rafikbhai Pathan to the tune of
Rs.2,50,000/- on 18.01.2014. Since the applicants and his wife
were not repaying the loan amount, the Mandli started
demanding the said amount, and therefore, the applicant
herein accepted the liability of repaying the loan amount on
behalf of both of them, and accordingly, issued a cheque
bearing No.000984 drawn on Amreli Jilla Madhyastha Sahkari
Bank Ltd., Dhari Branch dated 06.11.2017 for an amount of
Rs.3,39,773/-, which was then presented by the Mandli for
encashment in its Bank account, however, the said cheque was
dishonoured with an endorsement 'Funds Insufficient" on
13.12.2017. Therefore, a statutory demand notice was given
to the applicant and his wife on 23.12.2017, which was
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received by them on 26.12.2017. Despite statutory notice
being served to them, they did not make the payment, and
therefore, the Mandali through its authorized signatory and
Branch Secretary, filed a complaint under Section 138 of the
Negotiable Instruments Act, which came to be registered as
Criminal Case No.45 of 2018, pursuant to which, the court took
cognizance and issued summons to the applicant and his wife,
and upon completion of trial, the applicant was convicted vide
judgment and order dated 10.03.2023 and sentenced to
undergo one year's simple imprisonment and also ordered to
pay fine of Rs.3,39,773/-, and in default to make the payment
of fine, was ordered to undergo further simple imprisonment of
three months.
2.1 The applicant herein had also individually obtained a loan
from the said Mandali to the tune of Rs.4,00,000/-, and as the
applicant was also not repaying the said loan, the Mandali
started demanding the loan amount, pursuant to which, the
applicant issued a cheque bearing No.019201 in favour of the
Mandali drawn on Amreli Jilla Madhyastha Sahkari Bank Ltd.,
Dhari Branch dated 06.01.2018 for an amount of Rs.4,78,633/-,
which was presented by the Mandali for encashment in its
Bank account, however, the said cheque also got dishonoured
with an endorsement 'Funds Insufficient' on 06.01.2018.
Therefore, the applicant was served with a statutory demand
notice dated 16.01.2018, which was received by him on
17.01.2018. Despite statutory notice being served to him, he
did not make the payment, and therefore, the Mandali through
its authorized signatory and Branch Secretary, filed a
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complaint under Section 138 of the Negotiable Instruments
Act, which came to be registered as Criminal Case No.68 of
2018, pursuant to which, the court took cognizance and issued
summons to the applicant, and upon completion of trial, the
applicant was convicted vide judgment and order dated
29.12.2022 and sentenced to undergo one year's simple
imprisonment and also ordered to pay fine of Rs.4,78,633/-,
and in default to make the payment of fine, was ordered to
undergo further simple imprisonment of three months.
2.2 Being aggrieved, the applicant preferred two appeals
before the learned Sessions Court being Criminal Appeal No.03
of 2023 against the judgment and order dated 29.12.2022
passed in Criminal Case No.68 of 2018 and Criminal Appeal
No.11 of 2023 against the judgment and order dated
10.03.2023 passed in Criminal Case No.45 of 2018. The
learned Sessions Judge, vide separate judgments and orders
dated 27.10.2023 respectively, was pleased to dismiss both
the appeals and confirmed the conviction of the applicant
recorded in Criminal Case No.45 of 2018 and Criminal Case
No.68 of 2018.
2.3 Against the aforesaid judgments and orders dated
27.10.2023, the applicant preferred two revision applications
being Criminal Revision Application No.1517 of 2023 and
Criminal Revision Application No.1427 of 2023 respectively,
however, the applicant withdrew both the revision applications
under the impression that the sentences in both the criminal
cases would run concurrently, which would come to an end on
24.12.2024.
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2.4 Subsequently, the wife of the applicant made an
application to the jail authority on 31.12.2024 to inquire about
the tenure of the sentence, and at that point of time, the
applicant came to know that the jail authorities have
considered sentence in both the cases to be run consecutively,
which would come to an end on 10.04.2026.
2.5 Hence, the applicant is here before this Court with the
present application.
3. Learned advocate Mr. Y.A. Bhambhani appearing for the
applicant, would, inter alia, submit that having regard to the
facts and circumstances of this case and particularly in view of
the fact that the nature of offence in both the cases being the
same arising out of the single transaction, both the courts
below should have directed that sentences imposed upon the
applicant to run concurrently and not consecutively. Moreover,
in both the cases the learned trial judge is the same and in the
appeals also, the appellate judge is the same. The parties are
also the same, and in the appeal proceedings, as the parties
are the same, the learned appellate court heard both the
appeals simultaneously and decided the same on the same
day, and therefore, while imposing sentence by the trial court
and got confirmed by the appellate court, they should have to
order the sentences to be run concurrently and not
consecutively, and by not doing so, both the courts below have
committed a grave error of law. Learned advocate Mr.
Bhambhani would submit that specific observation should be
there in the order of the appellate court while hearing the two
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cases simultaneously of the same party whether to run the
sentence concurrently or consecutively. Here in the case on
hand, there is no such specific observation made by the
appellate court while passing the impugned orders dated
27.10.2023 after hearing both the appeals simultaneously. He
would submit that under the impression of both the sentences
to be run concurrently, the applicant has withdrawn the
revision applications filed by him against the judgments and
orders dated 27.10.2023, and if the sentences imposed upon
the applicant is considered to be run concurrently, then the
applicant has already completed the period of sentence
including the three months' penalty period. Learned advocate
Mr. Bhambhati would submit that, therefore, when both the
offence are arising out of the single transaction, the parties are
same, and the trial judge as well as the appellate judge are
also the same, asking the applicant to undergo both the
sentences consecutively would be nothing but a gross abuse of
process of law, and as such, the present application may be
entertained by directing the sentences imposed in both the
cases to be run concurrently, and as the tenure of sentence
having already come to an end, the applicant may be ordered
to be released forthwith from the judicial custody.
4. The present application has been vehemently opposed by
learned advocate Mr. Nishith P. Acharya appearing for the
respondent No.2. He would submit that both the transactions
took place between the applicant and the Mandali are
altogether distinct and different. The first transaction is
between the Mandali and the applicant and his wife and the
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second transaction is between the Mandali and the applicant
only. In the first transaction, the applicant and his wife jointly
obtained a loan from the Mandali, and in the second
transaction the loan was obtained by the applicant only.
Therefore, two different proceedings had been initiated by the
Mandali, and if the Hon'ble Court would go through the cause
title of both the cases, it would be found out that in one case
the applicant and his wife both have been implicated as the
accused and in the second case, only the applicant has been
implicated as an accused. Thus, by no stretch of imagination, it
can be said that both the cases are arising out of the same
transaction. Even the statutory notices in both the cases are
different issued on different dates for altogether different
transactions. Thus, for two different transactions, two different
complaints have been registered, wherein what is common is
only the applicant. In both the cases loan amount is also
different, and there is a gap of almost two years in obtaining
both the loans. The orders passed by the trial court in both the
cases are also on different dates. Learned advocate Mr.
Acharya would submit that the advantage which the applicant
is trying to get is because the learned appellate court has
heard both the appeals simultaneously due to resemblance of
the parties in both the cases. No doubt, the date of the
judgment and order of appellate court is the same, however,
the orders are not common, and both the orders have been
passed separately in separate appeals.
5. Learned advocate Mr. Acharya would further submit that
since inception, the applicant is evading to make good the
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cheque amount. Even at the time of preferring the revision
applications before this Court challenging the judgments and
orders passed in the appeal proceedings, learned advocate for
the applicant made a statement that the applicant is ready and
willing to deposit 50% of the cheque amount before the
learned trial court within a period of one week, and on the
basis of such statement being made, this Court thought it fit to
suspend the sentence. However, as the applicant failed to
make the payment before the trial court, he was not released
on bail, and this is the reason why the applicant had to
withdraw the revision applications. Thus, the stand taken by
the applicant that he was under a bona fide impression that
sentence in both the cases would run concurrently and it would
come to an end on 24.12.2024 is nothing but an eyewash and
a clear attempt to mislead the Hon'ble Court under the guise
of bona fide impression and also an attempt to seek mercy
from the Hon'ble Court after having realized the mishap invited
by the applicant by withdrawing the revision applications. He
would submit that the applicant had a remedy available to him
by exercising powers under Section 397 read with 401 of the
Cr.P.C., which he had already availed, and the Hon'ble Court
also granted respite to the applicant, however, as the applicant
did not fulfill its promises, he had to withdraw the revision
applications due to his own fault, and by filing the present
application, he is now seeking indulgence of this Court to direct
both the sentences to be run concurrently and not
consecutively. Learned advocate Mr. Acharya would submit
that this Court should not exercise its powers under Section
482 of the Cr.P.C. or under Section 528 of the BNSS in favour
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of the applicant who with open eyes has waived his rights to
challenge the judgments and orders passed by both the courts
below. Moreover, the applicant had a right to ask for the same
relief before this Hon'ble Court exercising powers of revision,
however, when the applicant has chosen not to do so, this
Hon'ble Court, while exercising inherent powers may not grant
the prayers as prayed for in the present application.
6. Learned advocate Mr. Acharya would also submit that the
ratio laid down in the decisions relied upon by the applicant is,
at all, not applicable to the facts of the present case. In the
case of Shyam Pal (supra), the appellant therein had filed
revision application before the Hon'ble High Court and when
the High Court had upheld the judgment and order of
conviction, the appellant had requested the Hon'ble High Court
to order concurrent running of sentence and that was not
entertained by the High Court,and therefore, the applicant had
approached the Supreme Court. In the case on hand, the
applicant had never prayed for concurrent running of the
sentence before this Court while filing revision application, and
as such, the facts of the decision relied upon by the applicant
and the facts in the case on hand are quite distinct and
different, and therefore, the said decision is not applicable to
the facts of the present case.
7. So far as another decision in the case of V.K. Bansal
(supra) is concerned, the same is based on a single transaction
rule, i.e, where there was a single transaction constituting
offence, even if different complaints were filed in relation
thereto, and it is held that sentences can be directed to run
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concurrently. In the case on hand, the transactions are
different for which two different cheques were handed over by
the applicant, and therefore, the single transaction rule would
not apply in the facts of the present case.
8. In such circumstances, referred to above, learned
advocate Mr. Acharya prays that there being no merit in the
present application, the same be dismissed.
9. Having heard the learned counsel appearing for the
parties and having gone through the materials available on
record, the only question that falls for my consideration is
whether the present application is maintainable?
10. It is contended by learned advocate for the applicant
that in the present cases, the transaction in question is the
same and, therefore, the sentence should be directed to run
concurrently as per Section 427(1) Cr.P.C., whereas The
learned advocate for the respondent No.2 has opposed the
petition by raising the preliminary objection that petition itself
is not maintainable, inasmuch as no appeal/revision is filed
against the judgment of conviction and, so applicant cannot
approach this Court to get the sentences run concurrently by
taking the aid of Section 482 Cr.P.C.
11. I am at one with the contention raised by the learned
advocate for the respondent No.2. It appears from the record
that revision applications were preferred by the applicant
before this Court challenging the orders passed by the
appellate court, however, the said revision applications came
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to be withdrawn by the applicant, and as such, it can easily be
said that there is no revision application filed against the
orders passed by the appellate court.
12. This aspect was considered by Hon'ble Supreme Court in
M.R. Kudva Vs. State of Andhra Pradesh, 2007(1) RCR
(Criminal) 868. In that case, conviction of the appellant was
recorded in two cases in respect of two distinct and different
offences. Separate appeals filed against those convictions were
dismissed by the High Court. Special Leave Petitions filed
against these, were dismissed by Hon'ble Supreme Court and it
is only thereafter that an application under Section 482/427
Cr.P.C. was filed in the High Court praying for sentences
imposed in the two cases to run concurrently. Said application
was rejected by the High Court, against which order, appeal
was preferred before Hon'ble Supreme Court. The Hon'ble
Supreme Court, in the said case, while dismissing the appeal
for concurrent sentence, held as under: -
"9. The said decisions, therefore, are not the authorities
for the proposition that it is incumbent upon the court to
direct in a case of this nature that both the sentences
shall run concurrently and not consecutively.
10. 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 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
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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. The appeal
being devoid of any merit is dismissed."
13. Thus, the view taken by Hon'ble Supreme Court in M.R.
Kudva's case (supra) leave no scope of doubt with regard to
the invoking of inherent power of Section 482 Cr.P.C. in
isolation to entertain application for making the sentences to
run concurrently.
14. Let me, at this stage, refer to Section 427 of the Code of
Criminal Procedure 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."
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15. The aspect of application of Section 427 of the Cr.P.C. has
also been considered by a Full Bench of Punjab & Haryana
High Court in Jang Singh Vs. State of Punjab, 2008(1) RCR
(Criminal) 323, wherein the Court after referring to the view
expressed by Hon'ble Supreme Court in M.R. Kudva's case
(Supra) as well as the different views taken by different High
Courts, has held as under: -
"The consensus of the judicial opinion, as may emerge
from different judgments passed by various High Courts
and the Hon'ble Supreme Court, seems to be that normal
rule, as per Section 427 Criminal Procedure Code, is that,
a person who is undergoing a sentence of imprisonment
and is sentenced on a subsequent conviction to an
imprisonment or an imprisonment for life, then such
imprisonment or imprisonment of life shall commence
after the expiration of the imprisonment, to which he has
been previously sentenced. This, however, would not
be so if the Court directs that the subsequent
sentence shall run concurrently with the previous
sentence. Such direction to make the sentences to
run concurrently, as per various decisions noted
above, can be exercised by the trial Court or by
the appellate Court or a revisional Court at the
time of exercising appellate or revisional
jurisdiction as well. However, if the trial Court
does not pass any such direction for making the
sentences to run concurrently and appeal or
revision against said decision is also decided, then
it may not be open for a person to seek such
direction for making the sentences to run
concurrently by moving an application under
Sections 482/427 Criminal Procedure Code. The
view taken by of the High Courts that such an
application can be entertained while exercising
inherent powers under Section 482 Criminal
Procedure Code would no more appear to be a
good law in view of the decision of the Hon'ble
Supreme Court in M.R. Kudva case (supra). We are,
thus, bound to take this view that this discretion though
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available with the trial Court, appellate Court or the
revisional Court while holding trial or entertaining appeal
or revision but would not be so available to be exercised
in isolation when application in this regard is moved
either under sections 482 or 427 Criminal Procedure
Code."
16. In the present case, it is apparent on the face of the
record that no such direction to run the sentences concurrently
has been given by the trial court while imposing the sentences,
and subsequently by the appellate court while confirming the
conviction. Moreover, such direction to make the sentences to
run concurrently, as per the decision noted above, can be
exercised by the trial Court or by the appellate Court or a
revisional Court at the time of exercising appellate or
revisional jurisdiction as well. However, if the trial Court does
not pass any such direction for making the sentences to run
concurrently and appeal or revision against said decision is
also decided, then it may not be open for a person to seek
such direction for making the sentences to run concurrently by
moving an application under Sections 482/427 Criminal
Procedure Code.
17. In the case on hand, the appeal against the order of
conviction passed by the trial court has already been decided,
and neither the trial court nor the appeal court has given any
specific direction of sentences to be run concurrently. Even, at
the time of filing the revision applications before this Court,
though the applicant could have agitate the said grievance, yet
he did not bother to make any such prayer of concurrent
running of sentences before the revsional court. Not only that,
the applicant also waived his right of challenging the order of
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the appellate court by withdrawing the said revision
applications. It also appears from the record that this Court, in
the revision applications filed by the applicant, granted respite
to the applicant and ordered suspension of sentence upon
statement being made by the applicant to deposit of 50%
amount of cheque before the trial court. However, as the
applicant failed to fulfill his promise, he was not released on
bail, and ultimately, had to withdraw the revision applications.
Moreover, the facts in both the cases are different and
distinct. In one case, the loan was jointly obtained by the
applicant and his wife, and in another case, the loan was
obtained only by the applicant herein, and as such, by no
stretch of imagination, it can be said that both the transactions
were same.
18. In view of the aforesaid legal position, present application
filed under Section 482 read with Section 427 Cr.P.C., seeking
concurrency of sentence in two cases, is held to be not
maintainable. The legal position is clear that once the
judgments of conviction and sentences have attained finality in
different cases, separate application under Section 482 Cr.P.C.
for concurrency of sentence is not maintainable, therefore,
there can be no hesitation in holding that present application
is not maintainable.
19. Consequently, present petition is hereby dismissed.
Notice stands discharged.
(DIVYESH A. JOSHI,J)
VAHID
