Madras High Court
Asiya Begam vs Pon.Sukumaan on 12 February, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.O.P.No.31371 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 23.01.2025
Orders Pronounced on : 12.02.2025
Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.O.P.No.31371 of 2024
--
Asiya Begam .. Petitioner
Vs.
1.Pon.Sukumaan
2.P.A.Raju .. Respondents
(R2 impleaded as per order dated 20.12.2024
in Crl.M.P.No.18284 of 2024 in Crl.O.P.No.31371 of 2024)
Criminal Original Petition filed under Sections 482 r/w 427 Cr.P.C.,/ under
Sections 528 r/w 467 of BNSS, 2023, praying to order the sentence imposed
by the judgment dated 16.03.2023 made in Crl.R.C.No.1383 of 2016 against
the judgment dated 29.02.2016 made in C.A.No.120 of 2015 on the file of
the II Additional Sessions Court, Erode, confirming the judgment dated
17.06.2015 made in S.T.C.No.296 of 2012 on the file of the Judicial
Magistrate, Fast Track Court II, Erode, to run concurrently with the sentence
imposed in the judgment dated 16.03.2023 made in Crl.R.C.No.1458 of
2016 against the judgment dated 24.11.2015 made in C.A.No.61 of 2015 on
the file of the I Additional Sessions Court, Erode, confirming the judgment
dated 05.02.2015 made in S.T.C.No.317 of 2012 on the file of the Judicial
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Crl.O.P.No.31371 of 2024
Magistrate, Fast Track Court II, Erode, by allowing this Criminal Original
Petition.
For Petitioner : Mr.N.Manokaran
For Respondents : No appearance for R1
Not ready in notice for R2
ORDER
This Criminal Original Petition is filed praying to issue a direction to
order the sentence imposed by this Court vide judgment dated 16.03.2023
made in Crl.R.C.No.1383 of 2016 against the judgment dated 29.02.2016
made in C.A.No.120 of 2015 on the file of the II Additional Sessions Court,
Erode, confirming the judgment dated 17.06.2015 made in S.T.C.No.296 of
2012 on the file of the Judicial Magistrate, Fast Track Court II, Erode, to run
concurrently with the sentence imposed in the judgment of this Court dated
16.03.2023 made in Crl.R.C.No.1458 of 2016 against the judgment dated
24.11.2015 made in C.A.No.61 of 2015 on the file of the I Additional
Sessions Court, Erode, confirming the judgment dated 05.02.2015 made in
S.T.C.No.317 of 2012 on the file of the Judicial Magistrate, Fast Track
Court II, Erode, by allowing this Criminal Original Petition.
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2. Respondents 1 and 2 herein separately filed private complaint
against the petitioner under Section 138 of Negotiable Instruments Act in
S.T.C.No.296 of 2012 and S.T.C.No.317 of 2012 on the file of the Judicial
Magistrate, Fast Track Court - II, Erode, respectively. The trial Court, on
considering the facts and circumstances of the cases and on appreciation of
oral and documentary evidence, came to conclusion that the legal
presumption under Section 139 of Negotiable Instruments Act must lean in
favour of the respondents and that the petitioner failed to rebut the
presumption and accordingly, convicted and sentenced the petitioner under
Section 138 of Negotiable Instruments Act, as detailed in the following
tabular column :
Sl. Complainant S.T.C.Nos. Conviction and sentence
No.
1. Pon.Sukumaran S.T.C.No.296 of 2012 Under Section 138 of Negotiable
(Judicial Magistrate, Instruments Act - 1 year SI and fine
Fast Track Court-II, of Rs.5,000/-, in default, one month
Erode) SI.
2. P.A.Raju S.T.C.No.317 of 2012 Under Section 138 of Negotiable
(Judicial Magistrate, Instruments Act - 1 year SI and fine
Fast Track Court-II, of Rs.5,000/-, in default, one month
Erode) SI.
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3. The above conviction and sentences were confirmed vide judgment
dated 29.02.2016 in C.A.No.120 of 2015 on the file of the II Additional
Sessions Court, Erode and judgment dated 24.11.2015 in C.A.No.61 of 2015
on the file of the I Additional Sessions Court, Erode. Aggrieved by the same,
the petitioner filed Crl.R.C.Nos.1383 and 1458 of 2016. This Court vide
separate order dated 16.03.2023 dismissed the revision in Crl.R.C.No.1383
of 2016 and directed the petitioner to deposit a sum of Rs.20,00,000/-
(Rupees Twenty Lakhs) before the trial Court on or before 12.05.2023 and
also dismissed the revision in Crl.R.C.No.1458 of 2016 and directed the
petitioner to deposit a sum of Rs.5,50,000/- (Rupees Five Lakhs Fifty
Thousand) before the trial Court on or before 12.05.2023, to compound the
said offence, if the petitioner fails to comply with the said condition, she was
directed to surrender before the trial Court on 15.05.2023. Since the
petitioner could not pay the cheque amount as directed by this Court, she
surrendered before the Judicial Magistrate, Fast Track Court No.1, Erode on
22.09.2023. Now the petitioner is confined in Special Prison for Women,
Coimbatore from 22.09.2023.
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4. Learned counsel for the petitioner contended that the petitioner is
aged about 56 years and she was living separately with her son and daughter.
The petitioner is suffering from breast cancer and facing the wrath of
criminal prosecution for the past 12 years and now she is living in penury.
Due to her poverty and health ailments, she could not approach the Hon’ble
Supreme Court for filing SLP and left with no other alternative option she
had surrendered before the Court below. If the petitioner runs two sentences
consecutively, she would suffer grave injustice. He further submitted that the
petitioner has already undergone the sentences for more than one year.
Therefore, she has filed the present petition for considering the same on
humanitarian grounds directing the sentences imposed on her to run
concurrently.
5. Learned counsel for the petitioner further submitted that this Court
may exercise its discretionary power under Section 427 Cr.P.C/427 BNSS
and issue direction that the subsequent sentence shall be run concurrently
with the previous sentence.
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6. In support of this contentions, the learned counsel for the petitioner
relied on the following judgments:
i) V.K.Bansal Vs. State of Haryana and Another reported in
2013 (7) SCC 211, the Supreme Court has held that there is no
straitjacket formula for exercising the discretion under Section
427(1) Cr.P.C. and the Court has to look into the nature of the
offence, facts and circumstances of each case.
ii) Vicky @ Vikas Vs. State (Govt. of NCT of Delhi) 2020 (11)
SCC 540, the Supreme Court has held that while ordering
sentences to run concurrently in two different cases of different
nature and transaction, the Court may consider the family
background of the accused, illness to his family members,
report of the Probation officer during her period of
incarceration.
(iii) Shyam Pal Vs. Dayawati Besoya and Another reported in
(2016) 10 SCC 761; and
(iv) Gurunathan Vs. The Inspector of Police reported in
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2012(6) CTC 510.
In the case on hand, the petitioner’s family is subjected to unforeseen penury
after her surrender on 22.09.2023. Therefore, this Court may allow this
petition.
7. Heard the learned counsel for the petitioner and perused the
materials available on record.
8. Despite service of notice on the first respondent and his name has
been printed in the cause list, none appeared on the side of the first
respondent either in person or through counsel.
9. Though the offences in the two cases are similar, the Court below
conducted separate trial and passed separate judgments. At the time of
passing of the judgment of conviction and sentence, the petitioner kept quiet
and did not make any claim before the trial Court to undergo the sentences
concurrently. Now the petitioner is convicted and undergoing sentence in
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respect of the said offence, and at this stage, this petition is filed under
Section 467 of BNSS, 2023 praying to run the sentences concurrently.
10. In the above context, it is useful to extract Sections 467 of BNSS,
as follows:
"Section 467: 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
141 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
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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."
11. In the case on hand, it is not a single transaction constituting
offence, but in each complaint, the transactions between the complainant and
petitioner are different and based on the complaint given by the different
complainant involving dishonor of cheques, the petitioner was convicted in
different S.T.C Cases for the offence under Section 138 of N.I.Act by the
same Trial Court by separate judgments. Further, both cases are not tried
simultaneously.
12. Further, the petitioner had already undergone the sentence of
imprisonment for more than one year and she is in prison from 22.09.2023
and after undergoing the sentence of imprisonment, she cannot invoke
Section 467(1) of BNSS.
13. Section 467(1) of BNSS makes it clear that when a person is
undergoing a sentence of imprisonment and if he/she is sentenced on a
subsequent conviction to imprisonment or imprisonment for life, such
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imprisonment or imprisonment for life shall commence at the expiration of
the imprisonment to which he/she has been previously sentenced, unless the
Court directs that the subsequent sentence shall run concurrently with such
previous sentence.
14. This Court can very well exercise its discretionary power to order
the sentence run concurrently, if the prosecution arises out of a single
transaction or both the transactions are akin to each other. However, in the
case on hand, the petitioner is involved in similar nature of offence in two
cases, and she was tried separately and was convicted and sentenced as
tabulated supra. The judgments rendered in both the cases are on different
dates. This shows that the petitioner is involved in two cases and same
sentence of imprisonment is imposed on her in respect of the two cases.
Thus, it is clear that the petitioner is a habitual offender. In these
circumstances, the decisions referred by the petitioner indicated above are
not applicable to the present case on hand
17. On a reading of Section 467 of BNSS, it is evident that the
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petitioner is not entitled to seek for running the sentences imposed on her to
concurrently in the two cases. The petitioner has to undergo the sentences of
imprisonment only consecutively.
18. With the above observations, this Criminal Original Petition is
dismissed.
12.02.2025
Index : Yes/No
Neutral Citation Case : Yes/No
Speaking Order : Yes/No
ms
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To
1. The II Additional Sessions Judge,
Erode.
2. The I Additional Sessions Judge,
Erode.
3. The Judicial Magistrate,
Fast Track Court-II, Erode.
4. The Superintendent of Prison,
Central Prison, Coimbatore.
5. The Public Prosecutor,
High Court, Madras.
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P.VELMURUGAN, J
ms
12.02.2025
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