Madras High Court
S.Ramesh vs K.A.Murugesan on 28 November, 2023
Author: G.Ilangovan
Bench: G.Ilangovan
Crl.O.P.(MD)No.18199 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.18199 of 2023
S.Ramesh ... Petitioner
Vs.
1.K.A.Murugesan
2.S.Venkateshwari ... Respondents
PRAYER : Criminal Original Petition is filed under Section 482 of
Cr.P.C, to undergo the sentence imposed on the petitioner in S.T.C.No.
92/2018 on the file of the Learned Judicial Magistrate, Fast Track
Court(ML) at Theni dt.4/10/2021 and STC No.1107/2018 on the file of
the Learned Judicial Magistrate, Periyakulam.
For petitioner : Mr.B.Alagumani
For Respondents : Mr.C.Saravana Kumar for R1
Mr.V.Bala Subramanian for R2
ORDER
This petition has been filed seeking direction to to undergo the
sentence imposed on the petitioner in S.T.C.No.92/2018 on the file of the
Learned Judicial Magistrate, Fast Track Court(ML) at Theni dt.4/10/2021
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Crl.O.P.(MD)No.18199 of 2023
and STC No.1107/2018 on the file of the Learned Judicial Magistrate,
Periyakulam.
2.The facts in brief:
The petitioner is an accused facing two criminal
prosecution, one in S.T.C.No.1107 of 2018 on the file of the learned
Judicial Magistrate, Periyakulam for the offence punishable under
Section 138 of the Negotiable Instruments Act, and for similar offence in
S.T.C.No.92 of 2018, before the learned Judicial Magistrate, Fast Track
Court, Magisterial Level, Theni. The judgment of conviction and
sentence was passed in S.T.C.No.1107 of 2018 on 19.10.2020,
sentencing the petitioner to undergo simple imprisonment for a period of
eight months and compensation amount of Rs.4,00,000/-, in default, two
months simple imprisonment. So far S.T.C.No.92 of 2018 is concerned,
sentence was passed on 04.10.2021 to undergo 6 months simple
imprisonment with compensation amount of Rs.3,00,000/-, in default,
two months simple imprisonment. C.A.No.57 of 2020 was preferred
against the judgment and conviction rendered in S.T.C.No.1107 of 2018.
By the Judgment dated 21.09.2021, it was dismissed confirming the
conviction and sentence. Against the Judgment of conviction in
S.T.C.No.92 of 2018, no appeal was preferred. In pursuant to the above
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Crl.O.P.(MD)No.18199 of 2023
said conviction and sentence, he was secured and imprisoned from
29.08.2022. As on date, he is in prison and serving sentence period. The
details of the period also available in the form of Custody Certificate,
wherein, we find that he was admitted as convicted prisoner on
29.08.2022. As on 15.08.2022, he served 11 months and 16 days.
3.A simple point is raised by the petitioner in this petition seeking
order of this Court to order the sentence period to run concurrently.
4.The respondent was served and also heard.
5.At the time of hearing the petition, a clarification was required to
be made upon the petitioner as to whether on the subsequent date of
judgment namely in S.C.No.92 of 2018, dated 04.10.2021, he was in
prison in connection with the conviction and sentence passed in
S.T.C.No.1107 of 2018, dated 19.10.2020. The learned counsel for the
petitioner submitted that the sentence was suspended and he was released
on bail in the above said matter. As noted above, after the disposal of the
appeal and S.T.C.No.92 of 2018, he was imprisoned on 29.08.2022. So
the question which arises for consideration is whether Section 427 (i)
Cr.P.C. will stand attracted to the present factual circumstances.
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Crl.O.P.(MD)No.18199 of 2023
6.For better appreciation Section 427 Cr.P.C. is extracted
hereunder:
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 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 or
imprisonment for life, the subsequent sentence shall
run concurrently with such previous sentence.
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Crl.O.P.(MD)No.18199 of 2023
7.Before that the learned counsel for the petitioner submitted that
in view of the settlement of law by the Honourable Division of this Court
in the case of K.Arasan and another Vs. The State of Tamil Nadu,
reported in 2012 (6) CTC 510, held that the High Court can exercise the
power under Section 482 of Cr.P.C. to pass order of running the sentence
concurrently. But, later Co-ordinate Bench of this Court was called upon
by the Bar to refer the above said Judgment to Larger Bench, in view of
the subsequent Judgement of the Honourable Supreme Court. In Crl.O.P.
(MD).No.14056 of 2019, that exercise was not made by the Co-ordinate
Bench of this Court, thought it fit to dispose the matter on some other
ground. But, the above said judgment is relevant for re-discussion also.
The phrase that is used in Section 427 Cr.P.C. that “while undergoing
Sentence” came up for consideration. The Co-ordinate Bench has
concluded that the convict must be undergo imprisonment physically in
the earlier case, then only Section 427(i) Cr.P.C. can be pressed into
service.
8.On this specific point, Judgment of the Honourable Division
Bench of the Bombay High Court made in the case of Sadashiv Chookha
Sable Vs. State of Maharashtra, reported in 1993(2) BomCR1, makes the
position clear. The reasoning assigned by the Honourable Division
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Crl.O.P.(MD)No.18199 of 2023
Bench stands to reason and logic. As it has been held by the Honourable
Division Bench, literal meaning should not be given to the phraseology
and if such course is adopted, then the consequences will be disastrous.
Not intended by the Section. So I find that the Judgment is applicable to
the present position also.
9.As mentioned above, in the earlier case, he was granted bail by
suspending the sentence. But, he failed to pay the compensation amount.
In the subsequent judgment also he failed to pay the compensation
amount. The learned counsel for the respondent contends that so far as
sentence namely the non payment of fine or compensation as the case
may be, Section 427(i) of Cr.P.C. will not stand attracted. There can be no
quarrel on that proposition of law. On that point in respect of the default
sentence, Section will not apply and naturally it has to run consecutively.
9.With regard to the factual circumstances also, the learned
counsel for the petitioner would submit that he borrowed money from
S.Venkateshwari. On that occasion, he issued blank cheques towards the
liability as security. By utilizing the cheques issued in blank, it was filled
up by the complainant in S.T.C.No.1107 of 2018 and foisted a false
complaint. The learned counsel who appeared for the petitioner did not
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Crl.O.P.(MD)No.18199 of 2023
cross examine the witnesses properly. Even the recall application filed by
the petitioner came to be dismissed. So according to him, the factual
circumstances of the case also indicate that both the transaction are one
and the same and so the bar may not be applicable.
10.These things cannot be taken into account at this stage. The
petitioner failed before the trial Court in properly contesting the
prosecution. Now he is paying the penalty. It may not be proper on the
part of this Court to go back to the pre trial defence, available to the
petitioner. But the fact remains that because of the conviction and
sentence, the petitioner was removed from service. He lost his benefits.
Now 14 months is already over. In the circumstances of the case, I am of
the considered view that ends of justice will be met if the substantial
sentence in S.T.C.No.92 of 2018 and S.T.C.No.1107 of 2018 is ordered to
run concurrently. If so concluded, then the substantial sentence 8 months
+ 2 months default sentence in S.T.C.No.92 of 2018 + 2 months default
sentence in S.T.C.No.1107 of 2018. Totally he has to undergo 12 months
of imprisonment. Now 14 months lapsed. So, I am of the considered view
that no more detention is required. On that sole ground without going
into other aspects that has been raised by the petitioner, this petition is
liable to be allowed.
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Crl.O.P.(MD)No.18199 of 2023
11.Accordingly, substantial sentence is ordered to be run
concurrently. In the result, this petition is allowed and this petitioner is
ordered to be released from the prison immediately, if not required in any
other case.
28.11.2023
Index : Yes/No
Internet : Yes/No
TM
To
1.The Judicial Magistrate, Fast Tract Court (Magisterial Level), Theni.
2.The Judicial Magistrate, Periyakulam.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.18199 of 2023
G.ILANGOVAN. J.
TM
Crl.O.P.(MD)No.18199 of 2023
28.11.2023
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