Madras High Court
S.Ganesh vs M.Thamimul Ansari on 7 February, 2025
Author: G.K. Ilanthiraiyan
Bench: G.K. Ilanthiraiyan
Crl.O.P. Nos.7227, 7240 & 7248 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2025
CORAM
THE HONOURABLE MR. JUSTICE G.K. ILANTHIRAIYAN
Crl.O.P. Nos.7227, 7240 & 7248 of 2024
Crl.O.P.No.7227/2024
S.Ganesh .. Petitioner
Vs.
M.Thamimul Ansari .. Respondent
Criminal Original Petition under Section 482 Cr.P.C. r/w. 427 Cr.P.C. to
order the sentence of simple imprisonment of 3 months imposed in the judgment
dated 04.12.2023 made in S.T.C.No.535 of 2018 on the file of the learned Judicial
Magistrate, FTC No.II, Erode to run concurrently along with the sentence of 6
months simple imprisonment imposed in the judgment dated 11.10.2021 made in
S.T.C.No.254 of 2018 on the file of hte learned Judicial Magistrate, FTC No.II,
Erode under Section 427 Cr.P.C. by allowing this Criminal Original Petition.
Crl.O.P.No.7240/2024
S.Ganesh .. Petitioner
Vs.
M.Ashraf Ali .. Respondent
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
Criminal Original Petition under Section 482 Cr.P.C. r/w. 427 Cr.P.C. to
order the sentence of simple imprisonment of 1 year imposed in the judgment
dated 09.10.2023 made in C.A.No.83 of 2020 on the file of the learned Principal
Sessions Judge, Erode, confirming the judgment dated 19.02.2020 made in
S.T.C.No.399 of 2018 on the file of the learned Judicial Magistrate (FTC No.II),
Erode, to run concurrently along with the sentence of 6 months simple
imprisonment imposed in the judgment dated 11.10.2021 made in S.T.C.No.254 of
2018 on the file of the learned Judicial Magistrate (FTC No.III), Erode under
Section 427 Cr.P.C. by allowing this Criminal Original Petition.
Crl.O.P.No.7248/2024
S.Ganesh .. Petitioner
Vs.
L.Gopal .. Respondent
Criminal Original Petition under Section 482 Cr.P.C. r/w. 427 Cr.P.C. to
order the sentence of simple imprisonment of 1 year imposed in the judgment
dated 16.03.2020 made in C.A.No.102 of 2019 on the file of the learned II
Additional District and Sessions Judge, Erode, confirming the judgment dated
01.03.2019 made in S.T.C.No.44 of 2018 on the file of the learned Judicial
Magistrate (FTC No.I), Erode, to run concurrently along with the sentence of 6
months simple imprisonment imposed in the judgment dated 11.10.2021 made in
S.T.C.No.254 of 2018 on the file of the learned Judicial Magistrate (FTC No.III),
Erode under Section 427 Cr.P.C. by allowing this Criminal Original Petition.
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
For Petitioner :: Mr.M. Guruprasad
in all Crl.O.P.s
For Respondent :: No appearance
in all Crl.O.P.s
COMMON ORDER
These Criminal Original Petitions have been filed by the petitioner/accused
to order the sentence of simple imprisonment imposed by the learned Judicial
Magistrate (FTC-II), Erode, in S.T.C.Nos.535 of 2018, 399 of 2018 and the
sentence of simple imprisonment imposed by the learned Judicial Magistrate
(FTC-I), Erode, in S.T.C.No.44 of 2018, to run concurrently along with the
sentence of simple imprisonment imposed by the learned Judicial Magistrate
(FTC-II), Erode, in S.T.C.Nos.254 of 2018.
2. The petitioner faced prosecution in the aforeasid cases for the offence
under Section 138 of the Negotiable Instruments Act, 1881 and the details of
conviction imposed on the petitioner by the trial Court and the decision of the
appellate Court on the findings of the trial Court are as under :
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
Sl.No. Name of the Sentence imposed by Appeal No., date of judgment &
Complainant the trial Court disposition
1. S.Gopal STC.No.44/2018 Crl.A.No.102/2019
(judgment dt.1.3.2019) (judgment dt.16.3.2020)
1 year SI + Rs.7,32,418/- Dismissed - sentence
compensation payable within 3 confirmed
months i/d 2 months SI
2. M.Ashraf Ali STC.No.399/2018 Crl.A.No.83/2020
(judgment dt.19.2.2020) (judgment dt.9.10.2020)
1 year SI Dismissed - sentence
confirmed
3. H.Issack Ali STC.No.254/2018 No appeal
(judgment dt.11.10.2021)
6 months SI + Rs.3,00,000/-
compensation payable within 3
months i/d 1 month SI
4. H.Issack Ali STC.No.278/2018 No appeal
(judgment dt.4.12.2023)
3 months SI + Rs.2,00,000/-
compensation payable within 3
months i/d 1 month SI
5. M.Thamimul STC.No.535/2018 Plead guilty
Ansari (judgment dt.4.12.2023)
3 months SI + Rs.2,05,475/-
compensation payable within 3
months i/d 1 month SI
3. Pursuant to the conviction and sentence imposed on the petitioner, the
petitioner surrendered before the trial Court and he was remanded to judicial
custody on 20.11.2023 in S.T.C.No.254/2018 by judgment dated 11.10.2021.
Admittedly, all the conviction and sentence imposed by the same Court
simultaneously in all cases.
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
4. It is relevant to extract Section 427 Cr.P.C. :
"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."
5. Thus, it is clear that if the Court imposes substantive sentence and not
specifically stated about the concurrency of sentence, it would be treated as
consecutively. But, the condition precedent for application of Section 427 Cr.P.C.
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
is that the person must be already undergoing the sentence of imprisonment.
Therefore, the effect of consecutive sentence on second conviction provided under
Section 427 Cr.P.C., would not be applicable to a convict who has been sentenced
to undergo, but not specifically undergoing a sentence of imprisonment, at the
time of second conviction. Therefore, the effect of consecutiveness as provided
under Section 427(2) Cr.P.C. will not be applicable to the petitioner and as such,
the petitioner cannot be subjected to consecutive sentence.
6. Further, it is also repeatedly held that in relation to the sentence to run
concurrently, there is no straight-jacket formula for exercising the discretion under
Section 427(2) Cr.P.C. and the Court can look into nature of the offences, facts
and circumstances of each case, can order to run the sentence concurrently. In the
case on hand, the petitioner was convicted and sentenced in all cases, in respect of
the offence under Section 138 of the NI Act. That apart, the petitioner was already
remanded to judicial custody on 20.11.2023 and he is under incarceration, till date.
7. In view of the above, it is ordered that the conviction and sentence
imposed on the petitioner by the trial Courts in S.T.C.Nos.535 of 2018, 399 of
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
2018 and S.T.C.No.44 of 2018, to run concurrently along with the sentence
imposed by the learned Judicial Magistrate (FTC-II), Erode, in S.T.C.Nos.254 of
2018.
In the result, all these Criminal Original Petitions are allowed.
07.02.2025
gya
To
1. The III Additional District Court
Puducherry.
2. II Additional District and Sessions Court
Erode
3. Judicial Magistrate Court (FTC No.III)
Erode
4. Judicial Magistrate Court (FTC No.II)
Erode
5. The Superintendent
Central Prison, Coimbatore
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Crl.O.P. Nos.7227, 7240 & 7248 of 2024
G.K. ILANTHIRAIYAN, J.
gya
Crl.O.P. Nos.7227, 7240 & 7248 of 2024
07.02.2025
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