Karnataka High Court
M/S M M Fabs And Tools vs Sri Narasimha Murthy on 20 April, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION No.6459 OF 2020
BETWEEN:
M/S M.M.FABS AND TOOLS
REP. BY ITS PROPRIETOR
SRI M.MURTHY
AGED ABOUT 61 YEARS
No.4/54, 50 FT. ROAD, 12TH CROSS
CHOWDESHWARI NAGAR, LAGGERE
BENGALURU-560 078.
... PETITIONER
(BY SRI.H.R.VISHWANATH ADV., FOR SRI.VIJAYAKUMAR.K.O
ADVOCATE)
AND:
1. SRI.NARASIMHA MURTHY
S/O KRISHNAPPA
AGED ABOUT 50 YEARS
R/AT No.40, 4TH CROSS
SANJEEVINAGAR
VISHWANEEDAM POST
BENGALURU-560 078.
2. SMT.SAVITHRI @ SAVITHRAMMA
W/O NARASIMHA MURTHY
AGED ABOUT 40 YEARS
R/AT No.40, 4TH CROSS
SANJEEVINAGAR
VISHWANEEDAM POST
BENGALURU-560 078.
2
3. THE CHIEF SUPERINTENDENT
CENTRAL PRISONS
PARAPPANA AGRAHARA
BENGALURU-560 100.
... RESPONDENTS
(BY SRI.H.R.SHOWRI.,HCGP FOR R3;
SRI.K.RAGHAVENDRA ADV., FOR R1 & R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO A) PASS AN ORDER HOLDING THAT THE
ORDER DATED 27.11.2019 PASSED BY THIS HONOURABLE
COURT IN CRL.RP.NO.361/2019 C/W CRL.RP.NO.363/2019 AND
THE ORDER DATED 27.11.2019 PASSED IN CRL.RP.NO.362/2019
SHALL RUN CONCURRENTLY.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 31.03.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C, praying
this Court to pass an order holding that the order dated
27.11.2019 passed by this Hon'ble Court in Crl.R.P.No.361/2019
C/w. Crl.R.P.No.363/2019 and the order dated 27.11.2019
passed in Crl.R.P.No.362/2019 shall run concurrently; to direct
respondent No.3 to release the petitioner in view of having
served the sentence of one year as per the orders of this Hon'ble
Court and to pass such orders or directions as this Hon'ble Court
deems just and proper in the facts and circumstances of the
case.
2. The factual matrix of the case is that respondent
No.1 had filed two complaints against this petitioner for the
offence punishable under Section 138 of Negotiable Instruments
Act (for short 'the NI Act') and the same were numbered as
C.C.No.11268/2014 and C.C.No.11269/2014. Respondent No.2,
who is the wife of respondent No.1 also filed the complaint
invoking Section 138 of NI Act. Learned Magistrate, after the
trial, considering the evidence in all the cases convicted and
sentenced the accused for the offence punishable under Section
138 of NI Act and also in default of payment of
fine/compensation, sentenced to undergo imprisonment for a
period of three months. The said orders have been challenged
before the Appellate Court and the Appellate Court allowed the
appeal in part, wherein default sentence of three months
imprisonment has been imposed in all the three cases. Being
aggrieved by the judgment passed by the First Appellate Court in
Criminal Appeals, the petitioner had preferred Criminal Revision
Petition before this Court.
3. This Court, after hearing both the sides on the
sentence to pay a fine/compensation amount, modified the
sentence imposed by the earlier Courts and directed in default of
making the payment, to undergo imprisonment for a period of
one year. However, two Revision Petitions were clubbed
together and another Revision Petition was disposed of
independently. Learned Magistrate had issued two warrants
against the petitioner herein and the petitioner is serving the
sentence ever since from the date of 24.09.2019 and the said
sentence of imprisonment for a period of one year has come to
an end on 23.09.2020. However, the petitioner has not yet been
released and he is still detained in the prison. Therefore,
requested the jail authorities to release the petitioner herein and
the jail authorities have not released him. In view of the
inaction of jail authorities, the present petition is filed.
4. The main grounds urged in the petition is that the
petitioner inspite of serving the sentence for a period of one year
in view of the order passed by this Court, the petitioner has been
detained in the jail, which is erroneous, arbitrary and
unconstitutional. In all the judgments and orders passed by the
learned Magistrate, there are no specific directions that the
sentences shall run consecutively. In the absence of any specific
directions and in view of the order passed by this Court is silent
and also the petitioner having already served the sentence of
imprisonment for a period of one year, it is just and necessary to
hold the sentence passed against the petitioner to run
concurrently.
5. Learned counsel brought to the notice of this Court
the provisions of Section 427 (1) of Cr.P.C. and prayed the Court
to hold the sentence as concurrent. Learned counsel also relied
upon the judgment in the case of V.K.Bansal v. State of
Haryana and Another reported in (2013) 7 SCC 211.
Referring to this judgment, learned counsel would contend that
the sentence so imposed on the petitioner ought to have been
made as concurrent.
6. Per contra, learned counsel appearing for the
respondents No.1 and 2 would vehemently contend that the
cheques were issued in respect of different transactions.
However, three criminal cases are filed against the petitioner. In
all total 10 cheques were issued, for six cheques, 2 cases are
filed against the petitioner. In respect of other four cheques,
separate criminal cases are filed. Learned counsel would
vehemently contend that the transactions are not single
transaction but different transactions and the complainants are
also different. Hence, the judgment of the Apex Court referred
by the learned counsel for the petitioner is not applicable to the
case on hand.
7. Learned counsel also brought to the notice of this
Court that in the judgment of the Apex Court, it is also clear that
in case of default sentence, the same cannot be made as
concurrent as contended by the learned counsel for the
petitioner.
8. The learned High Court Government Pleader for the
State would submit that in case of default sentences, there
cannot be any order for making the sentence as concurrent
sentence and the same should be consecutive. Learned HCGP
would vehemently contend that the jailor's report is also
received and when the default sentence has been passed against
the petitioner, the question of making the same as concurrent
sentence cannot be accepted as contended by the learned
counsel for the petitioner.
9. Having heard the learned counsel for the respective
parties and also on perusal of the records, it is not in dispute
that total 10 cheques were issued by the petitioner and in
respect of 6 cheques, two criminal cases are registered. It is also
not in dispute that in two cases the complainants are different.
No doubt, there is no dispute that both these complainants are
husband and wife. Having perused the order passed by this
Court, Crl.R.P.No.361/2019 connected with Crl.R.P.No.363/2019
were considered together since in both the matters complainant
is one and the same. This Court also while considering the
matter on merit in para No.17 directed to make the payment as
compensation. It is also observed that if the said amount is not
paid within two months from the date of the order, it carries an
interest at the rate of 9% per annum for the delayed period. The
order is also very clear that in default, he has to undergo
imprisonment for a period of one year. In Crl.R.P.No.362/2019
filed by the petitioner, who is a different complainant had
approached this Court questioning the sentence imposed by the
learned Magistrate and in the said order at para No.17, this
Court directed to pay the compensation amount and if the said
amount is not paid within two months, it carries interest at the
rate of 9% per annum. It is further ordered that, in default to
make the payment, he shall undergo imprisonment for a period
of one year.
10. Having perused both the orders, the default sentence
is for a period of one year. Learned counsel appearing for the
petitioner would vehemently contend that both these sentences
should have run concurrently. The Apex Court in V.K.Bansal's
case discussed with regard to Section 427(1) of Cr.P.C. which
stipulates the discretionary power of the Court to direct sentence
to run concurrently and also discussed with regard to when it
should be exercised. It is further held that no straight jacket
approach can be laid down. However, only substantive sentence
can be directed to run concurrently and sentence awarded in
default of payment of fine/compensation cannot be directed to
run concurrently.
11. Learned counsel appearing for the petitioner though
relied upon this judgment, failed to take note of the fact that the
Apex Court categorically held that sentences awarded in default
of payment of fine/compensation cannot be directed to run
concurrently. In the case on hand, it is not in dispute that the
petitioner has not paid the amount as directed by this Court but
he has committed a default in payment of fine amount. When
such being the case, the sentence awarded in default of payment
of fine/compensation cannot be directed to run concurrently.
12. This Court would like to extract para No.18 of the
judgment of the Apex Court, wherein the Apex Court had
discussed in detail regarding the sentences awarded in default of
payment of fine/compensation, and held that Section 427 of
Cr.P.C permits a direction for concurrent running of the
substantive sentences with sentences awarded in default of
payment of fine/compensation, which reads as hereunder:-
18. Applying the principle of single transaction
referred to above to the above fact situations we are
of the view that each one of the loan
transactions/financial arrangements was a separate
and distinct transaction between the complainant on
the one hand and the borrowing company/appellant
on the other. If different cheques which are
subsequently dishonoured on presentation, are
issued by the borrowing company acting through the
appellant, the same could be said to be arising out of
a single loan transaction so as to justify a direction
for concurrent running of the sentences awarded in
relation to dishonour of cheques relevant to each
such transaction. That being so, the substantive
sentence awarded to the appellant in each case
relevant to the transactions with each company
referred to above ought to run concurrently. We,
however, see no reason to extend that concession to
transactions in which the borrowing company is
different no matter the appellant before us is the
promoter/Director of the said other companies also.
Similarly, we see no reason to direct running of the
sentence concurrently in the case filed by State Bank
of Patiala against M/s Sabhyata Plastics and M/s
Rahul Plastics which transaction is also independent
of any loan or financial assistance between the State
Financial Corporation and the borrowing companies.
We make it clear that the direction regarding
concurrent running of sentence shall be limited to
the substantive sentence only. The sentence which
the appellant has been directed to undergo in default
of payment of fine/compensation shall not be
affected by this direction. We do so because the
provisions of Section 427 CrPC do not, in our
opinion, permit a direction for the concurrent running
of the substantive sentences with sentences awarded
in default of payment of fine/compensation.
13. Having perused the principles laid down in the
judgment and also in the case on hand, the petitioner has not
paid the amount and he has committed a default of payment of
fine/compensation amount, the Apex Court held that Section 427
of Cr.P.C. do not permit to issue a direction for the concurrent
running of the substantive sentences with sentences awarded in
default of payment of fine/compensation and hence, this Court is
of the view that the sentences passed by this Court cannot be
directed to run as concurrently as the petitioner has been
awarded default sentence and hence, I do not find any error
committed by the learned Magistrate or jail authorities in not
considering the request of the petitioner herein as contended in
the petition.
14. In view of the discussions made above, I pass the
following:
ORDER
The petition is hereby rejected.
Sd/-
JUDGE
PYR
