Sumersingh Uikey vs The State Of Madhya Pradesh
2024 Latest Caselaw 3541 MP

Madhya Pradesh High Court

Sumersingh Uikey vs The State Of Madhya Pradesh on 7 February, 2024

Author: Vishal Dhagat

Bench: Vishal Dhagat

                             1
 IN   THE     HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                         BEFORE
           HON'BLE SHRI JUSTICE VISHAL DHAGAT
                 ON THE 7 th OF FEBRUARY, 2024
               CRIMINAL APPEAL No. 5465 of 2018

BETWEEN:-
SUMERSINGH UIKEY S/O SHRI ACHHELAL UIKEY,
AGED ABOUT 45 YEARS, OCCUPATION: PRESENTLY
SALESMAN AND L EKHAPAL ADIM JATI SEWA
SHAHKARI SAMITI MARYADIT SHIKARA SEONI GRAM
LEHRIKOL THANA KINDRAI DISTGT. SEONI (MADHYA
PRADESH)

                                                   .....APPELLANT
(BY SHRI VISHAL V.R. DANIEL - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH THE
STATE ECONOMIC BUREAU THANA DISTT. SEONI M.P.
(MADHYA PRADESH)

                                                 .....RESPONDENTS
(BY SHRI MADHUR SHUKLA - ADVOCATE)

               CRIMINAL APPEAL No. 5472 of 2018

BETWEEN:-
SUMERSINGH UIKEY S/O SHRI ACHHELAL UIKEY
OCCUPATION: SALESMAN AND LEKHAPAL,ADIM JATI
SEWA   SHAHKARISAMITI     MARYADIT   SHIKARA
DISTRICT SEONI R/O GRAM LEHRIKOL THANA
KINDRAI DISTRICT SEONI (MADHYA PRADESH)

                                                   .....APPELLANT
(BY SHRI VISHAL V.R. DANIEL - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THR.STATE
ECONIMIC BUREAU THANA BHOPAL (MADHYA
PRADESH)
                                   2
                                                            .....RESPONDENTS
(BY SHRI MADHUR SHUKLA - ADVOCATE)

                  CRIMINAL APPEAL No. 5693 of 2018

BETWEEN:-
SUMERSINGH UIKEY S/O SHRI ACHHELAL UIKEY,
AGED ABOUT 45 YEARS, OCCUPATION: PRESENTLY
SALESMEN AND LEKHAPAL, ADIM JATI SEWA
SHAHKARI SAMITI MARYADIT, SHIKARA,DISTRICT
SEONI R/O GRAM LEHRIKOL THANA KINDRAI
DISTRICT SEONI (MADHYA PRADESH)

                                                               .....APPELLANT
(BY SHRI VISHAL V.R. DANIEL - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH THE
STATE ECONOMIC BUREAU R/O THE STATE ECONOMIC
BUREAU, THANA BHOPAL (MADHYA PRADESH)

                                                            .....RESPONDENTS
(BY SHRI MADHUR SHUKLA - ADVOCATE)

      This appeal coming on for admission this day, th e court passed the
following:
                                   ORDER

Appellant has filed these appeals under Section 374 (2) of the Criminal Procedure Code, 1973 being aggrieved by the judgment dated 28.06.2018 and judgment dated 20.07.2018 passed by Special Judge (Corruption and Prevention Act), Seoni, District-Seoni, M.P. in Special Criminal Case No.300046/2008, ST No.300048/2008 and ST No.300047/2008 by which he has been convicted for offences under Sections 409, 467, 468, 471 of the IPC; Sections 3/7 of the Essential Commodities Act 1955 and Sections 13(1)D/13(2) of the Corruption and Prevention Act, 1988 and sentenced to undergo R.I. for three years, three years, three years, three years, six months, three years with

fine of Rs.2600/-, Rs.2600/-, Rs.2600/-, Rs.2600/-, Rs.2600/-, Rs.2600/- respectively, with default stipulations.

2. It is submitted by learned counsel for the appellant that Haroon Singh was Manager, Ayodhya Prasad Shrivastava (dead) was Operator, Koklal was President and Prabhudayal Dixit (dead) was Distribution Officer. Other accused namely Netram Rajak, Raman Singh Uikey, Roshanlal, Rajkumar Rajak, Sumer Singh Uikey were Salesmen. Appellant- Sumersingh Uikey was Salesman in Fair Price Shop of village-Bineki, Bagdari and Bijasen.

3. Manger of society wrote a letter on 20.10.1997 to Assistant Registrar, Cooperative Society informing him that stock of wheat and rice were infested with insect and needs to be disposed. On receiving letter, Assistant Registrar constituted a committee on 08.01.1998 for categorizing of stock individually for animal feed or waste. On 06.02.1998, categorization was done and part of stock was received for animal feed. While part of it was declared to be waste, on 24.04.1998, letter was issued prescribing an audit for money transactions. Assistant Registrar authorized the audit vide order dated 08.05.1998. On 13.08.1998, report was presented and discrepancy was found in respect of financial years 1995-96, 1996-97, 1997-98. D.C. Golhani the then Manager forwarded complaint to Economic Offence Wing, Jabalpur on 11.11.1998. EOW registered Crime No.8/2004 for offence under Sections 120-B, 420, 409,

467, 468, 471 of the IPC; Sections 13(1)(d) of the Prevention of Corruption Act and Sections 3/7 of the Essential Commodities Act, 1955.

4. Three Sessions trial originated from said complaint i.e. ( i ) ST No.300046/2008 was in respect of irregularities and embezzlement for year 1995-96 and CRA No.5465/2016 was preferred against judgment dated 28.06.2018 passed in said sessions trial;

( ii) ST No.300047/2008 was in respect of irregularities and embezzlement for year 1996-97 and CRA No.5693/2018 is preferred against judgment dated 20.07.2018 passed in said sessions trial;

(iii) ST No.300048/2008 was in respect of irregularities and embezzlement for year 1997-98 and CRA No.5472/2018 is preferred against judgment dated 28.06.2018 passed in said sessions trial. 5 . Learned counsel appearing for the appellant submitted that as per judgment of Sessions Trial, sentence for offences under Sections 409, 467, 468, 471 of the IPC; Sections 3/7 of the Essential Commodities Act 1955 and Sections 13(1)D/13(2) of the Corruption and Prevention Act, 1988, is to run concurrently but there is no stipulation that sentence in aforesaid three cases will also run concurrently. Counsel for appellant draws attention of this Court towards Section 427 of the Cr.P.C.

6. Section 427 of the Code of Criminal Procedure is quoted as under:-

"427. 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.

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.

7. Learned counsel appearing for the appellant has relied upon the judgment passed by Apex Court in case of Y.S. Jagan Mohan Reddy Vs. Central Bureau Investigation reported in (2013) 7 SCC 439. On strength of said judgment, it is argued that seven matters were pending in said case and four charge sheets have been filed. Supreme Court consolidated charge sheets in said seven matters. In view of same, number of transactions which are part of the offence is to be tried together as a consolidate case and, therefore, direction may be given that all sentence is to run concurrently. Reliance is also placed on judgment passed by High Court of Kerala at Ernakulam in CRL.A. No.992/2013 vide order dated 10.07.2020. Relevant paragraphs No.18, 19, 20 of aforesaid judgment are quoted as under:-

"18. Moreover, as the very provision suggests, the rule is always that the sentences should run one after the other and the rule of concurrency is the exception. As held by the Apex Court, the benefit under Section 427 cannot be conferred for transactions which are unrelated. In such cases, the sentences should run consecutively.

19. The learned counsel for the appellant placed reliance on the decision reported in Mani and Another v. State of Kerala (1983 Cri.LJ 1262) a n d an unreported decision of the Madras

High Court in Crl.O.P.(MD) No.14056 of 2019. I have no doubt that these decisions cannot support the argument of the counsel. In Mani's case (supra), a Division Bench of this Court was considering the question whether the inherent powers of the Court under Section 482 of the Code can be invoked to decide whether two sentences should run concurrently or consecutively. Overruling an earlier decision of a learned Single Judge of this Court in Bhaskaran v. State (1978 KLT 6) the Division Bench answered the question in the affirmative. The Madras High Court decision deals with simultaneous disposal of matters by the High Court in two prosecutions for offence under Section 138 of the Negotiable Instruments Act, after the disposal of appeals and revisions. Both the decisions were rendered in different contexts and cannot help the appellant.

20. To sum up, granting of prayer for concurrency depends

on facts and circumstances of each case and the benefit under Section 427 of the Code can be claimed only before the Court trying the subsequent offences. Direction to run concurrently can be given only in appropriate cases by the Court imposing subsequent sentence of imprisonment; the appellate court dealing with subsequent conviction also can exercise the jurisdiction. In appropriate cases, such a benefit can be given by the High Court also, in exercise of its inherent jurisdiction under Section 482 of the Code. To put it in other words, seeking such a relief from the court dealing with the first conviction is totally out of place."

8. Reliance is also placed in judgment passed by Apex Court in case of Benson Vs. State of Kerala reported in (2016) 10 SCC 307. In said case, appellant stood convicted and sentenced to 12 different matters. Total length of sentence in aggregate was around 19 years. Maximum sentence in respect of crime is two years R.I. In this matter, Apex Court directed that sentence imposed in each of the present case shall run concurrently. Reliance is also placed on judgment passed by Apex Court in Iqram Vs. State Uttar Pradesh & Others reported in (2023) 3 SCC 184. Relevant paragraphs No.11, 12 of said judgment are quoted as under:-

"11. In Mohd Zahid Vs State through NCB, this Court interpreted the provisions of Section 427 of CrPC after duly considering the precedents in the following terms :

"17. Thus from the aforesaid decisions of this Court, the principles of law that emerge are as under:

1 7 . 1 if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;

1 7 . 2 Ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence;

17.3 The general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence

cannot be awarded under Section 427 Cr.P.C.;

17.4 Under Section 427(1) of Cr.PC the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.

12. The Trial judge, in the present case, granted a set off within th e ambit of Section 428/Section 31 CrPC. No specific direction was issued by the trial court within the ambit of Section 427(1) so as to allow th e subsequent sentences to run concurrently. All the convictions took place on the same day."

9. Learned Government Advocate appearing for the State opposed the appeal and submitted that in absence of direction of concurrency, sentence will run consecutively as per mandate of Section 427 of the Cr.P.C. No case is made out for interference and appeal may be dismissed.

10. Heard the counsel for the parties.

11. Court has to exercise discretion to pass orders whether sentence will run concurrently or consecutively in subsequent conviction of accused. Learned counsel for the appellant has failed to draw attention of trial Court towards earlier conviction and Court has also not exercised its discretion passing orders whether sentence is to run concurrently. Similar discretion was not exercised in ST No.300048/2008 and no direction was given.

12. On going through the facts of the case, it is found that offence was committed in series of transactions in years 1995-96, 1996-97, 1997-98, therefore, it was necessary for the Court to exercise its discretion whether sentence will run concurrently or consecutively. Though, Court has mentioned in the judgment that lenient view may not be adopted against the appellant but Court failed to take into consideration of earlier conviction of appellant arising out of series of transactions between year 1995-1998. Though, different transactions occurred in three financial years but all transactions are arising out of same planning, scheme and modus operandi.

13. Apex Court in case of Benson (supra) has passed the order that sentence will run concurrently, though sentence was in twelve different matters but sentence of fine and default sentence are maintained. If fine is not deposited then default sentence will run consecutively and not concurrently. In case of Y.S. Jaganmohan Reddy (supra) also four charge sheet have been filed which were consolidated by Apex Court and in said case, it was held that economic offences arises out of deep rooted conspiracy and there are different transactions for it. In view of same, case was consolidated. Apex Court in case of Ikram (supra), held that power under Section 427(1) of the Cr.P.C. is to be exercised judiciously depending upon nature of offence committed and facts in the situation.

14. In view of aforesaid judgments and facts of the case, it is clear that financial embezzlement was done in series of transactions which are part of same plan and conspiracy done by the appellant. Attention of trial Court was not drawn towards previous conviction and trial Court has not exercised its discretion to pass order under Section 427 of the Cr.P.C. Since, trial Court consciously did not exercise the power under Section 427 of the Cr.P.C.,

therefore, it cannot be said that intention of trial Court was for running of sentence consecutively and not concurrently. It was failure on part of counsel and prosecutor to bring to the notice of the Court regarding subsequent sentences.

15. In view of same, appeals are allowed in part and it is directed that sentence imposed upon appellant in subsequent cases i.e. ST No.300047/2008 and ST No.300048/2008 will run concurrently with sentence imposed in ST No.300046/2008.

16. A copy of this order be sent to the trial Court for compliance and release of appellant from jail, if he has suffered the sentence as ordered above.

(VISHAL DHAGAT)

JUDGE $A Date: 2024.02.29 16:28:16 +05'30'