Karnataka High Court
Mr. Shailesh B N vs The State Of Karnataka on 16 January, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:1987
CRL.P No. 6822 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 6822 OF 2023
BETWEEN:
MR. SHAILESH B N.,
S/O NARAYANA GOWDA,
AGED ABOUT 46 YEARS,
R/AT MANIBAIL HOUSE,
YENEKALU VILLAGE,
DEVARAHALLI POST,
SULLIA TALUK,
D K DIST 577221
NOW IN JUDICIAL CUSTODY
...PETITIONER
(BY SRI K RAVISHANKAR, ADVOCATE)
AND:
Digitally signed
by V KRISHNA 1. THE STATE OF KARNATAKA
Location: High REP BY THE JAIL SUPERINTENDENT,
Court of SHIVAMOGGA CENTRAL PRISON,
Karnataka 1ST CROSS ROAD,
RAJENDRA NAGAR,
SHIVAMOGGA 577204
2. KUKKE SRI SUBRAMANYA
SWAMY TEMPLE
SUBRAMANYA,
SULLIA TALUK,
D K DISTRICT,
REP BY ITS EXECUTIVE OFFICER,
KUKKE SRI SUBRAMANYA
SWAMY TEMPLE,
-2-
NC: 2024:KHC:1987
CRL.P No. 6822 of 2023
SUBRAMANYA,
SULLIA TALUK,
D K DISTRICT 574327
...RESPONDENTS
(BY SRI VINAY MAHADEVAIAH, HCGP FOR R1 AND SMT
VAISHALI HEGDE, ADV. FOR R2)
***
CRL.P FILED U/S 482 CR.P.C. PRAYING TO ALLOW THIS
PETITION AND DIRECT THE TRIAL COURT TO RUN THE
SENTENCE DATED 08.04.2021 PASSED IN C.C.NO.647/2019 TO
RUN CONCURRENTLY WITH THE SENTENCE DATED 08.04.2021
PASSED IN C.C.NO.648/2019 PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC SULLIA, D.K. FOR THE OFFENCE P/U/S 138
OF N.I. ACT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner - accused under
Section 482 of Cr.P.C. for a direction to the trial Court to run
the sentence of imprisonment with default sentence dated
08.04.2021 passed in CC No.647/2019 to run concurrently with
the sentence of imprisonment and default sentence dated
08.04.2021 passed in CC No.648/2019 by the Senior Civil
Judge and JMFC, Sullia, D.K. for the offence punishable under
Section 138 of Negotiable Instrument Act.
2. Heard the learned counsel for petitioners and
learned HCGP for respondent - State.
NC: 2024:KHC:1987
3. The case of the petitioner is that he has issued two
cheques to the respondent No.2, which came to be dishonoured
and hence the respondent No.2 filed two complaints under
Section 138 of NI Act, which are numbered as CC No.647/2019
and CC No.648/2019. Petitioner pleaded not guilty and claims
to be tried. Accordingly, he was tried and convicted by the trial
Court vide judgment dated 08.04.2021 and petitioner has been
sentenced to undergo simple imprisonment for a period of six
months and shall pay a fine of Rs.10,50,000/- in default to
undergo simple imprisonment for a period of one months in CC
No.647/2019 and in CC No.648/2019 he to undergo simple
imprisonment for a period of one year and shall pay a fine of
Rs.60,50,000/- in default to undergo simple imprisonment for a
period of one month. The trial Court further held that the
petitioner is entitled for set of under Section 428 of Cr.P.C. if he
had in judicial custody.
4. Being aggrieved by the said judgment of conviction
and order of sentence in both the cases, the petitioner
preferred appeal before the Sessions Court in Crl. A.
No.5031/2021 and Crl. A. No.5032/2021, which came to be
dismissed and judgment of the trial Court has been confirmed.
NC: 2024:KHC:1987
Thereafter, the petitioner has not preferred any revision
petition before this Court. Hence, the judgment passed by the
trial Court attained finality. Petitioner is said to be surrendered
on 15.03.2023 and he is in jail undergoing sentence.
5. The petitioner has filed the present Criminal Petition
before this Court under Section 482 of Cr.P.C. for a direction to
the trial Court and Jail Authorities to treat the both the
sentence of imprisonment with default sentence dated
08.04.2021 passed in CC No.647/2019 shall run concurrently
with the sentence of imprisonment and default sentence dated
08.04.2021 passed in CC No.648/2019 by the Senior Civil
Judge and JMFC, Sullia, D.K. for the offence punishable under
Section 138 of Negotiable Instrument Act, as per Section
427(1) of Cr.P.C.
6. Learned counsel for petitioner submits that there is
no order passed by the trial Court while delivering the
judgment in both the cases on the same day and the conviction
and sentence are passed against the petitioner on the same
day. Such being the case, the sentence are ordered to be run
concurrently, but the same was not ordered by the trial Court
or by the first appellate Court.
NC: 2024:KHC:1987
7. The learned counsel for respondent No.2 contends
that both the sentence should run consecutively for the reason
that the petitioner has not complied the judgment passed by
the trial Court. Hence, he prays to dismiss the petition.
8. Learned HCGP appearing on behalf of respondent
No.1 - State also contends that the petitioner is not entitle to
the relief as claimed by him and prays to dismiss the petition.
9. Learned counsel for petitioner in support of his
contention relied upon the decision rendered by this Court in
Crl.P. No.1236/2023 DD 18.05.2023 in the case of SHIVANNA
@ SHIVANNA M. vs MEGHARAJA AND ANOTHER and also the
decision of the Hon'ble Supreme Court in the case of V.K.
BANSAL vs STATE OF HARYANA AND ANOTHER reported in
(2013) 7 SCC 211. The learned counsel for petitioner also relied
on the decision of this Court in the case of SRI GANAPATHI
AND ANOTHER vs WIPRO LIMITED AND ANOTHER reported in
2015 SCC ONLINE KAR 9215.
10. Having heard the arguments of the learned counsel
for petitioners and learned HCGP and on perusal of the entire
material on record, of course, the judgment delivered by the
trial Court on 08.04.2021 in both cases, the issuance of
NC: 2024:KHC:1987
cheques, commission of offence and cause of action arose on
the same day. Both the complaints were filed on the same day
and numbered as CC No.647/2019 and CC No.648/2019 and
conviction was also passed by the trial Court on the same day,
ie., 08.04.2021. But the trial Court while passing the judgment
has not stated anything about the order regarding the sentence
shall run concurrently or consequently. If nothing is stated the
sentence shall run consequently and therefore, it is necessary
for the trial Court to mentioned whether the sentences passed
shall run concurrently or consequently.
11. Considering the facts and circumstances of the case
and also judgments relied on by the learned counsel for
petitioner, this Court in SHIVANNA's case, supra, is of the view
that when both the cases are convicted and sentence is passed
by the trial Court on the day for the similar offence, the
provisions of Section 427(1) of Cr.P.C. attracts and the
sentences shall run concurrently. The Hon'ble Supreme Court
also in V.K.BANSAL's case, supra, and also the decision of this
Court in GANAPATHI's case, supra, I am of the view that the
since the judgment was passed by the trial Court on the same
day and sentence is also passed on the same day, the
NC: 2024:KHC:1987
sentences shall run concurrently as per Section 427(1) of
Cr.P.C. since the same is not passed by the trial Court.
Therefore, the judgment of conviction and order of sentence
are required to be modified, to be read as 'the sentences in
both the cases shall run concurrently as per Section 427(1)
Cr.P.C.'. Accordingly, the following order:
ORDER
(i) The petition is allowed.;
(ii) The order of sentence of imprisonment dated
08.04.2021 passed in CC No.647/2019 and CC
No.648/2019 by the Senior Civil Judge and
JMFC, Sullia, D.K. for the offence punishable
under Section 138 of Negotiable Instrument
Act, is modified.;
(iii) The sentence of imprisonment passed in CC
No.647/2019 for a period of six months and in
CC No.648/2019 for a period of one year with
default sentence in both the cases, is ordered
to be run concurrently, as per Section 427(1)
of Cr.P.C..;
NC: 2024:KHC:1987
(iv) The petitioner - accused is entitled for set off
under Section 428 of Cr.P.C.;
(v) Registry is directed to communicate the
operative portion of the order to the trial Court
as well as concerned Jail Authorities.
Sd/-
JUDGE
VK
