6. In V.K. Bansal v. State of Haryana and Anr. (2013) 7 SCC
211, it was held by this Court as under:
17. Considering the aforesaid law, the facts of this case are
examined. In the case at hand, the offence is related to financial
default and no physical violence is involved, therefore, in the
conspectus of the aforesaid facts and enunciation of law, it emerged
as a well settled proposition that the power enshrined under Section
427 (1) of CrPC can be exercised by the Trial Court as well as by
the Appellate Court at any time and even after decision of merits in
the case. Offence under Section 138 of N.I. Act, 1881 has maximum
punishment of 2 years therefore, no ne should be punished for four
offences consecutively. Hence, since his appellate Court can use its
discretion with regard to direct the subsequent sentence for running
concurrently with such previous sentence and therefore, the request
of petitioner regarding issuing direction for the concurrent sentence
with previous sentence is liable to be accepted.
19. In upshot of the aforesaid legal position, the contentions of
petitioner for issuing direction of "concurrent running of sentence"
20. As a result thereof, it is directed that the sentence awarded
in all the four criminal appeals shall run concurrently and therefore,
the applicant has to suffer one year simple imprisonment in all four
cases concurrently and he has to deposit the compensation amount as
per the judgment passed by the Courts below, for each of the cases
separately. It is clarified that the sentence imposed in default in each
case would not be concurrent (i.e.) if applicant fails to deposit the
compensation amount as awarded by the trial Court as well as by
Appellate Court he will suffer default sentence in all four cases
consecutively."
The Supreme Court further has categorized the cases which were before
the Supreme Court in which conviction passed and observed as under:-
"17. Applying the above test to the 15 cases at hand we find that the
cases against the appellant fall in three distinct categories. The
transactions forming the basis of the prosecution relate to three
different corporate entities who had either entered into loan
transactions with the State Financial Corporation or taken some other
financial benefit like purchase of a cheque from the appellant that was
on presentation dishonoured. The 15 cases that have culminated in the
conviction of the appellant and the award of sentences of
imprisonment and fine imposed upon him may be categorised as
under:
(1) Cases in which the complainant Haryana State Financial
Corporation advanced a loan/banking facility to M/s Arawali
Tubes Ltd. acting through the appellant as its Director viz.
Criminal Complaint Cases No. 269-II/1997; No. 549-II/1997;
No. 393-II/1997; No. 371-II/1997; No. 372-II/1997; No. 373-
II/1997; No. 877-II/1996; No. 880-II/1996; No. 878-II/1996;
No. 876-II/1996; No. 879-II/1996 and No. 485-II/1996.
(2) Cases in which the complainant Haryana State Financial
Corporation advanced a loan/banking facility to the appellant to
M/s Arawali Alloys Ltd. acting through the appellant as its
Director viz. Criminal Complaint Cases No. 156-II/1997 and
No. 396-II/1998.
(3) Criminal Complaint No. 331-II/1997 in which the
complainant State Bank of Patiala purchased/discounted the
cheque offered by Sabhyata Plastics acting through the appellant
as its Director."
The Supreme Court in the said case has further observed as to why in a
different category of cases, Section 427 of Cr.P.C. would not be
applicable and sentence would not run concurrently. The observation
made by the Supreme Court with regard to applicability of Section 427
Cr.P.C. in different nature of cases reads as under:-
"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."
Finally, the Supreme Court in paragraph 19 has distinguished total cases
giving them different categories clubbing them together which have
arisen from same transaction and then direct each and every category of
cases arising out of same transaction, sentence though awarded in
different cases but in the same transaction, ergo, they would run
concurrently. Merely because, Section 427 Cr.P.C. does not speak about
'single transaction' but at the same time, it is required to be seen that
provision of Section 138 of N.I. Act, 1881 introduced and came into
effect only in the year 1882 whereas Section 427 Cr.P.C. is a substantive
provision introduced in the Cr.P.C. in 1974 considering the offence
committed under the Indian Penal Code and, therefore, the word 'single
transaction' though is not mentioned in the provision but that has been
explained by the Supreme Court later-on in number of cases especially
in a case of V.K.Bansal (supra).
10. Although, subsequently the Supreme Court i.e. K. Padamaja
Rani (supra) though it was not a very detailed judgment considering the
factual aspect of the matter but otherwise the Supreme Court has
clarified that the analogy laid down earlier in case of V.K.Bansal
(supra) of running the sentence in different cases against one person, the
same would run concurrently if arising out of the same transaction. The
said analogy in view of the case of V.K.Bansal (supra), as has been
considered hereinabove, I do not find it appropriate to comment over the
observation made by the Supreme Court in case of K. Padamaja Rani
(supra).
11. Furthermore, the Supreme Court in case of Benson Vs. State of
Kerala (2016)10 SCC 307 has further considered the case of
V.K.Bansal (supra) and observed as under:-
"6. In terms of sub-section (1) of Section 427, 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. Going by this normal principle,
the sentence chart indicated in the communication dated 27-5-2016 is
quite correct. However this normal rule is subject to a qualification
and it is within the powers of the Court to direct that the subsequent
sentence shall run concurrently with the previous sentence.
..........
"9. The maximum sentence in respect of the present crimes is two
years' rigorous imprisonment. As per the record, these crimes were
committed on the same day. Having considered the matters, we deem
it appropriate to direct that the sentences imposed in each of the cases
i.e. (i) CC No. 158 of 2004, (ii) CC No. 1039 of 2003, (iii) CC No.
390 of 2004, and (iv) CC No. 1168 of 2006, namely, those at Sl. Nos.
9 to 12 respectively as indicated in the sentence chart in the
communication dated 27-5-2016 shall run concurrently with the
sentence imposed in Crime No. 8 which is currently operative. We
grant this benefit in respect of substantive sentences to the appellant
but maintain the sentences of fine and the default sentences. If the
fine as imposed is not deposited, the default sentence or sentences
will run consecutively and not concurrently."
12. Over and above, the Supreme Court also in case of Shyam Pal
Vs. Dayawati Besoya and another reported in (2016)10 SCC 761 has
further considered this aspect and observed as under:-
"10. We have extended our required consideration to few facts and the
submissions made. The materials on record leave no manner of doubt
that the complaints filed by the respondents stem from two identical
transactions between the same parties whereunder the respondent had
advanced a loan of Rs 5 lakhs each to the appellant on two different
dates against which the latter had issued cheques to discharge his debt
and that the cheques had been dishonoured. The facts pleaded and
proved do unassailably demonstrate that the loans advanced had been
in the course of a series of transactions between the same parties on
same terms and conditions. Significantly in both the cases, following
the conviction of the appellant under Section 138 of the Act, the same
sentences as well have been awarded. There is thus an overwhelming
identicalness in the features of both the cases permitting, the two
transactions, though undertaken at different points of time, to be
deemed as a singular transaction or two segments of one transaction.
This deduction understandably is in the singular facts of the case."
13. Moreso, the Supreme Court in case of P.N. Mohanam Nair Vs.
State of Kerala (2017) 14 SCC 719 considering the implication of the
provisions of Section 427 Cr.P.C. has observed as under:-
"8. We do not consider it necessary to further elucidate or enter into
an exposition of the law, in view of the precedents noticed above.
Suffice it to observe that in the facts of the case, the exercise of
discretion under Section 427(1) of the Code of Criminal Procedure,
mandates that the substantive sentences imposed upon the appellant
in the three separate prosecutions, are directed to run concurrently,
except the default sentence, if the fine by way of compensation as
imposed has not been paid by him. The appellant would naturally
be entitled to all consequential reliefs for release from custody as
available in law based on the present discussion."
14. In Trilok Chand Sharma Vs. State of Rajasthan (Criminal
Miscellaneous (Petition) No. 6923/2024 which was also relied upon by
the learned counsel for the petitioner, the High Court of Rajasthan
relying upon the case of V.K.Bansal (supra) has observed as under:-
'8. As per Section 427 Code of Criminal Procedure (Now, Section
467 of BNSS, in normal course a person already undergoing a
sentence of imprisonment, if sentenced on a subsequent conviction
to imprisonment, such imprisonment commence at the expiration
of the imprisonment to which he has been previously sentenced,
but the court in its discretion based on settled principles may direct
that the subsequent sentence shall run concurrently with previous
sentence. While exercising such discretion, the trial court, appellate
court or revisional court, as the case may be, keep in mind several
factors. In the instant case, the learned trial Courts did not exercise
its discretion with respect to concurrency of sentences and thus,
there is absolutely non-consideration of the issue about invoking
this discretion which is causing serious miscarriage of justice.
15. As per Shri Khare, the Rajasthan High Court while dealing with
the provisions of Section 427 Cr.P.C. has very clearly observed that it is
a discretionary power which can be exercised judiciously depending
upon the nature of the offence or the offences committed and the fact
situation. The paragraph 10 of the judgment of Rajasthan High Court is
reproduced herein below:-
'10. In Arjun Ram vs State of Rajasthan : 2016 (1) Cr.L.R. (Raj.) 346,
Hon'ble Division Bench of this Court has held that "to meet the ends
of justice, power under Section 482 of Cr.PC can be exercised if Court
arrives at the conclusion that the Trial Court, Appellate Court or the
Revisional Court as the case may be, failed in completing the circuit
of justice while invoking/not invoking the discretion vested with it as
per Section 427 Cr.P.C. If the sentences are ordered to run
consecutively, the petitioner has to remain incarcerated for a long time
period in respect of his conviction and sentence in the aforementioned
cases, which in no manner can be said to be justifiable.'
In the said case, the Rajasthan High Court taking note of the case
reported in 2021 SCC OnLine SC 1183 (Mohd. Zahid Vs. State
through NCB), in paragraph-9 has observed as under:-
"9. In Mohd. Zahid v State through NCB reported in 2021 SCC
OnLine SC 1183, Hon'ble Supreme Court Court interpreted the
provisions of Section 427 of CrPC after duly considering the
precedents in the following terms:
"33. Thus from the aforesaid decisions of this Court, the
principles of law that emerge are as under:
(i) 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;
(ii) 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;
(iii) 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.;
(iv) 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."
16. Indeed, various judgments have been relied upon on behalf of the
petitioner and perusal thereof, although this Court is not convinced to a
degree that would favour the petitioner, but, on coming across a
judgment of the Supreme Court, there appears a ray of hope for the
petitioner. The said judgment has been rendered by the Supreme Court
in case of Iqram Vs. State of Uttar Pradesh and Others (2023) 3
SCC 184, wherein the Supreme Court has also relied upon a case of
Mohd. Jahid and has observed as under:-
'10. Section 427 provides that 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. In other words, sub-section (1) of Section 427
confers a discretion on the court to direct that the subsequent sentence
following a conviction shall run concurrently with the previous
sentence.
11. In Mohd. Zahid v. State [Mohd. Zahid v. State, (2022) 12 SCC
426], this Court interpreted the provisions of Section 427CrPC after
duly considering the precedents in the following terms : (SCC p.440,
para 17)
"17. Thus from the aforesaid decisions of this Court, the
principles of law that emerge are as under:
17.1. 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.
17.2. 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 427CrPC.
17.4. Under Section 427(1)CrPC 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 the
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 the subsequent sentences to run concurrently. All the
convictions took place on the same day.
13. Once the petitioner espoused the remedy of moving a writ
petition under Article 226 of the Constitution, the High Court ought
to have noticed the serious miscarriage of justice which would occur
consequent upon the trial court not having exercised specifically its
discretion within the ambit of Section 427(1). When the appellant
moved the High Court, he was aggrieved by the conduct of the jail
authorities in construing the direction of the trial court to mean that
each of the sentences would run consecutively at the end of the term
of previous sentence and conviction. The High Court ought to have
intervened in the exercise of its jurisdiction by setting right the
miscarriage of justice which would occur in the above manner,
leaving the appellant to remain incarcerated for a period of 18 years
in respect of his conviction and sentence in the nine Sessions trials
for offences essentially under the Electricity Act.
14. In view of the above discussion, we allow the appeal and set aside
the impugned judgment of the High Court dated 24-3-2022 [Iqram v.
State of U.P., 2022 SCC OnLine All 875]. We order and direct that
the sentences which have been imposed on the appellant in the nine
Sessions trials noticed in the earlier part of this judgment shall run
concurrently.'
17. In Radheshyam (supra) relying upon the judgment of Supreme
Court in case of V.K.Bansal (supra) has observed that in these cases of
Section 138 of Negotiable Instrument Act, the sentences will run
concurrently but the default sentence will run consecutively, although,
the court has considered the fact that the cases arising out of same
transaction and such observation can be seen from paragraph 15, which
is as under:-
'15. The aforesaid legal position mandates that exercise of discretion
to the benefit of the accused in cases where the prosecution is based
on a single transaction can be applied in appropriate cases. It would
be irrespective of the fact that different complaints had been filed
involving dishonour of cheques issued by the borrower towards
repayment of single loan to the creditor.'
18. In Rajkumar Daulatani (supra) wherein the Rajasthan High
Court, applying the principle of Section 427 Cr.P.C. considered the
conviction and sentence awarded in 44 cases of Section 138 of
Negotiable Instrument Act and observed as under:-
'2. It is contended by learned counsel for the petitioner that the
petitioner, who was a businessman and was carrying out the business
of crockery, suffered huge losses and came to be convicted in 44
cases under Section 138 of the NI Act. He has been sentenced to
undergo different period of sentences and the period of total
substantive sentences comes to 83.5 years. It is further contended that
Section 427 of the Code of Criminal Procedure Act, 1973 gives a
discretion to this court to issue direction to run all the substantive
sentences concurrently.
****
5. The Co-ordinate Bench of this court in Rajendra Kabra, (supra)
has held as under:--
"24. Having considered the facts and circumstances of the
present case, offence involved, sentences awarded, period of
detention of the petitioner as on date and the law laid down by the
Hon'ble Supreme Court in State of Punjab v. Madan Lai, V.K. Bansal
v. State of Haryana, Shyam Pal v. Dayawati Besoya, And Arnmavasai
v. Inspector of Police, (supra), I am of the considered view that it
would not be inconsistent with the administration of criminal justice
if the petitioner is allowed the benefit of discretion contained in
Section 427 of the Code to meet the ends of justice. However, as per
the law laid down by the Hon'ble Supreme Court in V.K. Bansal v.
State of Haryana and Shyam Pal v. Dayawati Besoya, (supra), the
direction for concurrent running of sentences would be limited only
to the substantive sentences alone.
25. In such circumstances, the present misc. petition is allowed
and it is ordered that the substantive sentences awarded to the
petitioner in the above referred 32 cases would run concurrently,
however, the petitioner will have to serve default sentences as the
provisions of Section 427 of the Cr.P.C. do not permit a direction for
concurrent running of substantive sentences with the sentences
awarded in default of payment of fine/compensation. The sentences,
which the petitioner has been directed to undergo in default of
payment of fine/compensation shall not be effected by this direction
and if the petitioner has not paid the fine/compensation as directed by
the Trial Courts; the said sentences would run consecutively. Needless
to say, if the petitioner pays the fine/compensation now, he is not
required to undergo default sentences (sentences awarded by the Trial
Courts in default of payment of fine/compensation).
* * *
7. Accordingly, the instant criminal misc. petition is allowed. It is
directed that the substantive sentences awarded to the petitioner in the
aforesaid 44 cases u/S.138 of NI Act, shall run concurrently; however,
it goes without saying that the petitioner will have to undergo default
sentences. Consequently, in 5 case he fails in paying
fine/compensation as directed therein."
19. Relying upon the aforesaid enunciation of law passed by the
Supreme Court and also by the High Courts considering different
circumstances of the case though the Supreme Court in case of
V.K.Bansal (supra) has used the word 'single transaction' and
subsequently in case of K. Padamaja Rani (supra), it is also clarified
that in case of V.K.Bansal (supra), the discretion under Section 427
Cr.P.C. can be applied when the sentence is awarded in different cases
but arisen out of single transaction. However, in the judgment of the
Supreme Court considered hereinabove that too after laying down a law
in case of V.K.Bansal (supra), the Supreme Court has further clarified
that provisions of Section 427 Cr.P.C. are completely a discretionary
exercise of power and can be applied and exercised to meet the ends of
justice considering the facts and circumstances of the case.
20. In case of Iqram (supra), the Supreme Court has clarified that
under Section 427(1) Cr.P.C., the Court has the power and discretion to
issue a direction that all the subsequent sentences shall run concurrently
with the previous sentences. However, the discretion has to be exercised
judiciously depending upon the nature of offence or the offence
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. It is a general rule that Section
427 Cr.P.C. can be applied when conviction and sentence awarded
arising out of same transaction but looking to the facts and
circumstances of the case in hand and the view taken by the Supreme
Court and also by the High Courts that the discretion has to be exercised
in the fact situation to avoid any serious miscarriage of justice, meaning
thereby there is no strict bar applying the principle of Section 427 in a
case arising out of the same transaction. However, in the present case,
there are 22 cases and maximum sentence awarded in a case of Section
138 of Negotiable Instrument Act in some of the cases are two years and
the default sentence is one month and 15 days. As such, total period of
sentence would come to 30 years & 06 months and it is something
beyond the realm of imagination that a person convicted under Section
138 of Negotiable Instrument Act has to suffer a sentence of 30 years,
coupled with that there is already a concurrent view that the default
sentence cannot run concurrently, therefore, in my opinion, without
interfering in the default sentence, in the present case, this Court has no
hesitation to exercise its discretion applying Section 427 of Cr.P.C. to
meet the ends of justice that the sentence awarded to the petitioner in the
offences contained in chart as mentioned in the petition shall run
concurrently.
21. With the aforesaid, the petition stands allowed and disposed of.
(SANJAY DWIVEDI)
JUDGE
sudesh/rao
SATYA SAI RAO
2025.04.25 13:28:59
+05'30'
