Madras High Court

A.Sadhiq Batcha vs R.Senthil Kumar on 26 July, 2023

Crl.O.P.Nos.16606 and 16609 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 26.07.2023

CORAM :

THE HON'BLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.Nos.16606 and 16609 of 2023

In Crl.O.P.No.16606 of 2023 :

A.Sadhiq Batcha .. Petitioner

Versus

R.Senthil Kumar .. Respondent

In Crl.O.P.No.16609 of 2023 :

A.Sadhiq Batcha .. Petitioner

Versus

K.Nachimuthu .. Respondent

Prayer in Crl.O.P.No.16606 of 2023: Criminal Original Petition filed
under Section 482 of the Code of Criminal Procedure, to order the sentence
imposed by the judgment dated 07.01.2015 made in S.T.C.No.305 of 2012
on the file of learned Judicial Magistrate, Fast Track Court No.1, Erode to
run concurrently with the sentence imposed in the judgment dated
30.09.2014 made in S.T.C.No.217 of 2012 on the file of learned Judicial

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Magistrate, Fast Track Court No.2, Erode under Section 427 Cr.P.C., by
allowing this Criminal Original Petition.

Prayer in Crl.O.P.No.16609 of 2023: Criminal Original Petition filed
under Section 482 of the Code of Criminal Procedure, to order the sentence
imposed by the judgment dated 06.02.2017 made in S.T.C.No.329 of 2012
on the file of learned Judicial Magistrate, Fast Track Court No.1, Erode to
run concurrently with the sentence imposed in the judgment dated
30.09.2014 made in S.T.C.No.217 of 2012 on the file of learned Judicial
Magistrate, Fast Track Court No.2, Erode under Section 427 Cr.P.C., by
allowing this Criminal Original Petition.

For Petitioner : Mr.N.Manoharan
(in both Crl.O.Ps)

COMMON ORDER
These petitions have been filed seeking for the sentences to run

concurrently in line with Section 427 of Cr.P.C.

2. The petitioner was convicted for offence under Section 138 of the

Negotiable Instruments Act, 1881 in three different complaints and was

sentenced and the particulars of the same is tabulated hereunder:-

S.No Complainant Trial case Appeal Revision
1. S.Rajendran S.T.C.No.217 of 2012 Crl.A.No.80 of Crl.R.C.No. 1633
(Ld. JM, FTC-2, 2014 (Ld. II Addl. of 2016.
Erode) Sessions Court, Dismissed.
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1 year RI + Rs.5000 Erode) Deposit
i/d. 1 month SI Dismissed. Rs.7,00,000/-
Sentence Before
Confirmed 12.05.2023 or
undergo
sentence.
2. R.Senthil S.T.C.No. 305 of Crl.A.No. 78 of Crl.R.C.No. 1381
Kumar (Subject 2012 (Ld. JM, FTC-1, 2015 (Ld. I Addl. of 2016.
case) Erode) Sessions Court, Dismissed.
6 month SI + Erode) Deposit
Rs.5000 i/d. 1 month Dismissed. Rs.2,00,000/-
SI Sentence Before
Confirmed 12.05.2023
undergo
sentence.
3. K.Nachimuthu S.T.C.No. 329 of Crl.A.No. 58 of Crl.R.C.No. 1052
2012 (Ld. JM, FTC-1, 2017 (Ld. II Addl. of 2017.
Erode) District & Dismissed.
6 month SI + Sessions Court, Deposit
Rs.6,00,000/- i/d. 1 Erode) Rs.6,00,000/-
month SI Dismissed. Before
Sentence 12.05.2023 or
Confirmed undergo
sentence.

3. The petitioner has filed these petitions with a prayer that the

sentence imposed against him in the above cases must run concurrently in

line with Section 427 of Cr.P.C.

4. Heard Mr.N.Manoharan, learned Counsel for the petitioner and

considered the materials available on record.

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5. It is pleaded by the petitioner that he has suffered heavy loss in his

business and he has also been declared as an insolvent in I.P.No.5 of 2012.

That apart, the petitioner has also pleaded that he does not have the financial

wherewithal to take the case to the Hon'ble Apex Court. Considering the

fact that the petitioner will undergo the sentence imposed in S.T.C.No.217

of 2012 which was confirmed by this Court in Crl.R.C.No.1633 of 2016, the

petitioner wants the other two sentences imposed in S.T.C.No.305 of 2012

and S.T.C.No.329 of 2012 which culminated in Crl.R.C.No.1381 of 2016

and Crl.R.C.No.1052 of 2017 respectively, to run concurrently.

6. The issue that is involved in this petition is no longer res integra

and useful reference can be made to the judgment of this Court in

G.Saravanan Vs. J.Sankaranarayanan1. For proper appreciation, the

relevant portion is extracted hereunder:-

" 11. The question is whenever the
sentencing court failed to pass any direction in
terms of Section 427 of Cr.P.C, will the effect of
consecutiveness kick in automatically ? A closer
reading of the provision would indicate that the
condition precedent for the application of Section
427 of Cr.P.C. is that the person must be already
undergoing a sentence of imprisonment when he
is convicted on a subsequent occasion and
1 2020 (3) CTC 218
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sentenced. The whole issue turns on the
expression "already undergoing a sentence of
imprisonment". "Already" means "before a
particular time in the past or before now".
"Undergoing" means "experiencing something"
(Oxford Advanced Learner's Dictionary, New 9th
Edition). One cannot be said to be undergoing a
sentence of imprisonment unless warrant for its
execution had been issued under Section 425 of
Cr.P.C. and it had taken effect. Only if the
convict had been physically detained pursuant to
such warrant, he can be said to be undergoing a
sentence of imprisonment and not otherwise.

12. Thus, for Section 427 (1) of Cr.P.C. to
apply, the condition precedent must be that the
person convicted and sentenced on the
subsequent occasion was already undergoing a
sentence of imprisonment in the previous case. If
he was not so undergoing a sentence in the
previous case, Section 427 (1) will not apply at
all. I must emphasize that Section 427 of Cr.P.C.
does not talk of a person already sentenced to a
term of imprisonment being sentenced on a
subsequent conviction to a term of imprisonment.
The legislature has carefully added the words
"already undergoing". This is significant. No
word occurring in a statutory provision can be
ignored. Each expression has to be given its full
effect.

13. The expression "undergoing" is also
found in Section 426 of Cr.P.C dealing with
sentence on escaped convict. Only a person
undergoing sentence in a prison can escape and
that would be an independent offence by itself.
Section 428 of Cr.P.C. is about setting off the

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period of detention already undergone by the
accused against the sentence of imprisonment.

14. Suppose on a single day, an accused is
found guilty in more than one case and
sentenced. It is for the court concerned to clarify
as to when the sentence in the subsequent case
will take effect. If the court is silent on this
aspect, the sentences will start running from the
date when they were given effect to. Section 427
(1) has prescribed the manner in which the
sentence will run. It states that if the court is
silent and had not given any direction that the
sentence given in the subsequent case will run
concurrently, it will run only consecutively.
Such an adverse consequence emanating from the
silence of the court has a serious implication for
personal liberty. The Constitution attaches a
very high value to personal liberty. Therefore,
such a provision must be construed in a manner
that is at once fair, just and reasonable. Only by
giving full effect to the expression "already
undergoing" such a result can be obtained.

15. In case on hand both the judgments of
conviction and sentence were handed out on the
same day. When the second judgment of
conviction and sentence was pronounced, the
petitioner had only been sentenced to a term of
imprisonment and he was not undergoing a
sentence of imprisonment. Therefore, this Court
has to necessarily hold the effect of
consecutiveness provided for Section 427(1) of
Cr.P.C. will not kick in, because the petitioner
was not undergoing any sentence of
imprisonment when he was found guilty in the
second case.

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16. Thus, as a result of the silence on the
part of the appellate court or the revisional court
in the case on hand, the petitioner cannot be
made to undergo the two sentences consecutively.
I make it clear that I am not for a moment giving
a direction that the sentences will run
concurrently. Even without a specific direction
that would be the result. Thus, by giving relief to
the petitioner I am in no way transgressing the
mandate set out in Section 362 of Cr.P.C."

7. This Court can also take note of the judgment of the Hon'ble Apex

Court in Vicky Alias Vikas Vs. State (NCT of Delhi)2. The relevant

portions are extracted hereunder:-

" 9. Section 427 CrPC deals with the
situations where an offender who is already
undergoing a sentence of imprisonment is
sentenced to imprisonment on a subsequent
conviction or imprisonment for life. Section 427
CrPC provides that 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.
Section 427 CrPC 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
2 (2020) 11 SCC 540
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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
of imprisonment for life, the subsequent
sentence shall run concurrently with
such previous sentence.”
10. We may refer to the decision of the
Supreme Court in Mohd. Akhtar Hussain v.
Collector of Customs [Mohd. Akhtar Hussain v.
Collector of Customs, (1988) 4 SCC 183 : 1988
SCC (Cri) 921] , wherein the Supreme Court
recognised the basic rule of convictions arising
out of a single transaction justifying concurrent
running of the sentences. In Mohd. Akhtar
Hussain [Mohd. Akhtar Hussain v. Collector of
Customs, (1988) 4 SCC 183 : 1988 SCC (Cri)
921] , it was held as under: (SCC p. 187, paras
10 & 12)
“10. The basic rule of thumb over the
years has been the so-called single

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transaction rule for concurrent
sentences. If a given transaction
constitutes two offences under two
enactments generally, it is wrong to
have consecutive sentences. It is proper
and legitimate to have concurrent
sentences. But this rule has no
application if the transaction relating
to offences is not the same or the facts
constituting the two offences are quite
different.
***

12. The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold (Control) Act, but it is evidently on different transactions. The complaint under the Gold (Control) Act relates to possession of 7000 tolas of primary gold prohibited under Section 8 of the said Act. The complaint under the Customs Act is with regard to smuggling of gold worth Rs 12.5 crores and export of silver worth Rs 11.5 crores. On these facts, the courts are not unjustified in directing that the sentences should be consecutive and not concurrent.”

11. After referring to Mohd. Akhtar Hussain [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and other cases, in V.K. Bansal v. State of https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.16606 and 16609 of 2023

Haryana [V.K. Bansal v. State of Haryana, (2013) 7 SCC 211 : (2013) 3 SCC (Civ) 498 : (2013) 3 SCC (Cri) 282] , the Supreme Court held that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints may have been filed. In V.K. Bansal [V.K. Bansal v. State of Haryana, (2013) 7 SCC 211 : (2013) 3 SCC (Civ) 498 : (2013) 3 SCC (Cri) 282] , it was held as under: (V.K. Bansal case [V.K. Bansal v. State of Haryana, (2013) 7 SCC 211 : (2013) 3 SCC (Civ) 498 : (2013) 3 SCC (Cri) 282] , SCC p. 217, paras 14-16) “14. We may at this stage refer to the decision of this Court in Mohd. Akhtar Hussain v. Collector of Customs [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] in which this Court recognised the basic rule of convictions arising out of a single transaction justifying concurrent running of the sentences. …

15. In Madan Lal case [State of Punjab v. Madan Lal, (2009) 5 SCC 238 : (2009) 2 SCC (Cri) 650] this Court relied upon the decision in Akhtar Hussain case [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and affirmed the direction of the High Court for the sentences to run concurrently. That too was a case under Section 138 of the Negotiable Instruments Act. The State was aggrieved of the direction that the https://www.mhc.tn.gov.in/judis

Crl.O.P.Nos.16606 and 16609 of 2023

sentences shall run concurrently and had appealed to this Court against the same. This Court, however, declined interference with the order passed by the High Court and upheld the direction issued by the High Court.

16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor.”

12. In V.K. Bansal [V.K. Bansal v. State of Haryana, (2013) 7 SCC 211 : (2013) 3 SCC (Civ) 498 : (2013) 3 SCC (Cri) 282] , the appellant-accused was facing fifteen cases and the Supreme Court has grouped fifteen cases into three different groups:

(i) the first having twelve cases relating to advancement of loan/banking facility to M/s Arawali Tubes Ltd. acting through the appellant thereon as Director;

(ii) the second having two cases relating to advancement of loan to the appellant M/s Arawali Alloys Ltd. acting through the appellant as its Director; and

(iii) the third having a single case qua the criminal complaint by State Bank of Patiala.

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The Court directed that the substantive sentences within first two groups would run inter se concurrently. The Supreme Court directed that the substantive sentences in first two groups and that in respect of the case in the third group would run consecutively.

13. Following the decision in V.K. Bansal [V.K. Bansal v. State of Haryana, (2013) 7 SCC 211 : (2013) 3 SCC (Civ) 498 : (2013) 3 SCC (Cri) 282] , in Benson v. State of Kerala [Benson v. State of Kerala, (2016) 10 SCC 307 : (2017) 1 SCC (Cri) 108] , the Supreme Court directed that the sentences imposed in each of the cases shall run concurrently with the sentence imposed in Crime No. 8 which was then currently operative. However, the Court held that the benefit of “concurrent running of sentences” is granted only with respect of substantive sentences; but the sentences of fine and default sentences shall not be affected by the direction. The Supreme Court observed that the provisions of Section 427 CrPC do not permit a direction for the concurrent running of the default sentence for non-payment of fine.

14. Further, in Anil Kumar v. State of Punjab [Anil Kumar v. State of Punjab, (2017) 5 SCC 53 : (2017) 2 SCC (Cri) 502] , it was held by this Court that: (SCC p. 55, para 5) “5. 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. Only in https://www.mhc.tn.gov.in/judis

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appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion be exercised by the court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case.”

15. The point falling for consideration is whether the case of the appellant is a fit case for exercising the discretion in directing the sentence of imprisonment to run concurrently with the sentence of imprisonment imposed in the earlier case in FIR No. 64/2011. Of course, FIR No. 64/2011, FIR No. 67/2011 and FIR No. 263/2009 relate to different transactions. Since the appellant was already undergoing imprisonment in FIR No. 64/2011, in terms of Section 427 CrPC, subsequent sentences shall run consecutively until and unless the court specifically directs that they shall run concurrently."

8. It is clear from the above judgments that if the accused person is

found guilty in more than one case and he is sentenced and the order of the

Court is silent with respect to the period from which the subsequent

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Crl.O.P.Nos.16606 and 16609 of 2023

sentence will take effect, the sentences will start running from the date when

they were given effect to. In other words, it will run concurrently.

9. In the instant case, the petitioner has been convicted and sentenced

for offence under Section 138 of the Negotiable Instruments Act, 1881 and

all the three sentences were confirmed by this Court in the Criminal

Revision Petitions on 12.05.2023. This Court did not specifically state that

the sentences in each case will run consecutively. In view of the same, the