IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.11.2010 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.Nos.1410 to 1414 of 2001 K.Chinnasamy .. Petitioner in all Crl.R.Cs./Accused Vs. R.Palanisamy .. Respondent in Crl.R.C.
No.1410/01/Complainant
V.M.Ramalingam .. Respondent in Crl.R.C.
No.1411/01/Complainant
M/s.G.V. Finance & Investments,
Solai Complex,
127/A3, Perundurai Road,
Erode -11. Rep. by its Managing Partner,
Mr.Murthy. .. Respondent in Crl.R.C.
Nos.1412 & 1413/01/Complainant
Sri Sakthi Vinayaga Finance,
by its Managing Partner C.Arunachalam,
S/o.Chinnan,
127/A-15, Sholai Complex,
Perundurai Road,
Erode. .. Respondent in Crl.R.C.
No.1414/01/Complainant
Prayer in all Crl.R.Cs.:- Petitions filed under Section 397 r/w. 401 of Cr.P.C., against the Judgment and conviction dated 31.07.2001, made in Crl.A.Nos.50, 51, 52, 53 and 54 of 2001 respectively on the file of the learned II Additional Sessions Judge, Erode, confirming the conviction by the Judgment dated 31.01.2001 and 19.02.2001 made in C.C.Nos.275, 290, 682, 683 of 1998 and 55 of 1999 respectively on the file of the learned Judicial Magistrate No.I, Erode, under Section 138 of the Negotiable Instruments Act.
For Petitioner in all Crl.R.Cs. : Mr.V.Krishnamoorthy For Respondent in Crl.R.C.Nos.1410, 1411 & 1414/01 : No Appearance For Respondent in Crl.R.C.Nos.1412 & 1413/01 : Mr.M.Guruprasad - - - - - COMMON ORDER
The revision petitioner in all these five cases is one and the same. The respondents are different. In all these five cases, the petitioner/accused was convicted by the trial Court as well as by the Appellate Court for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo six months rigorous imprisonment in each case.
2. Mr.V.Krishnamoorthy, learned counsel appearing for the revision petitioner in all these five cases submitted that the petitioner was not challenging his conviction at present and he was confining his argument only to the question of sentence. A memo also had been filed by the learned counsel for the petitioner to that effect. The learned counsel for the petitioner further submitted that the cheque amount involved in Crl.R.C.Nos.1410 and 1411 of 2001 is Rs.1,00,000/- in each case; the cheque amount involved in Crl.R.C.Nos.1412 and 1413 of 2001 is Rs.1,50,000/- in each case and the cheque amount involved in Crl.R.C.No.1414 of 2001 is Rs.2,00,000/-. The learned counsel for the petitioner also submitted that the petitioner was running several business but due to heavy loss in the business, he could not repay the amount due to others. The petitioner is also facing a case under TNPID Act before the Special Court under TNPID Act at Coimbatore in C.C.No.1 of 2009. His properties have already been attached by the Government under the said Act and the properties of the petitioner were already sold and the sale amount had been distributed to the depositors by the competent Authority. As on date, the petitioner is employed in a private company and he is getting only a meager salary.
3. The learned counsel for the petitioner further submitted that the petitioner had already been in jail for a period of 85 days and prayed for leniency with regard to the quantum of sentence. Further, the learned counsel for the petitioner prayed before this Court to invoke the provision under Section 427(1) of Cr.P.C. and to direct the sentence of imprisonment to run concurrently in all the cases. The learned counsel for the petitioner also relied on a decision of this Hon’ble High Court reported in 2010 (3) CTC 43 (G.Rengarajan Vs. State by Inspector of Police, SPE/CID/CBI, Chennai) and also a decision of the Hon’ble Delhi High Court reported in AIR 1978 DELHI 138 (Gopal Dass Vs. The State).
4. Though notice was ordered to the respondent in all the five cases, in Crl.R.C.No.1410 of 2001, notice could not be served to the respondent/complainant and a report has been given by the Inspector of Police, Erode South Police Station stating that the respondent is not residing in the given address and he had vacated his premises at present. The Village Administrative Officer of 35, Erode C.Kasipalaysm also has given a certificate to that effect. Though notice had been served in Crl.R.C.Nos.1411 to 1414 of 2001, only in Crl.R.C.Nos.1412 and 1413 of 2001 Mr.M.Guruprasad, learned counsel is appearing on behalf of the respondent and there is no representation on behalf of the respondents in Crl.R.C.Nos.1411 and 1414 of 2001.
5. Mr.Guruprasad, learned counsel appearing for the respondent in Crl.R.C.Nos.1412 and 1413 of 2001 submitted that already the trial Court did not impose any fine amount on the revision petitioner/accused and no compensation amount also has been awarded to the respondent/complainant. In such a case, the sentence of imprisonment imposed on the petitioner/accused should neither be reduced nor be made to run concurrently otherwise it may amount to only flea-bite sentence.
6. This Court has considered the submissions and perused the records.
7. As the revision petitioner himself has not challenged his conviction and even on a perusal of grounds no question of law is raised in these criminal revision cases and both the trial Court and the Appellate Court having found the revision petitioner/accused guilty under Section 138 of the Negotiable Instruments Act, this Court confirms the conviction on the accused/petitioner in all the five cases under Section 138 of the Negotiable Instruments Act.
8. According to the petitioner herein, he was running several business in the year 1998 namely two Poultry Feed Factories and also he was running a finance firm and a chit fund firm. Due to heavy loss in the business, the petitioner could not repay the amount and he is also facing a case under TNPID Act before the Special Court at Coimbatore for an offence under Section 5 of TNPID Act, which is punishable upto 10 years. It is also brought to the notice of this Court that the properties of the petitioner had already been attached. The trial Court also observed that the accused had suffered heavy loss in the business and he was in difficulty and the trial Court did not impose any fine on the revision petitioner/accused.
9. Considering the submissions made by the learned counsel for the revision petitioner, this Court feels that the sentence of imprisonment imposed on the revision petitioner/accused could be reduced further. But at the same time, it should not be flea-bite sentence. Accordingly, the sentence of imprisonment imposed on the accused/revision petitioner in all the five cases is reduced to a period of three months rigorous imprisonment.
10. The next question that arises for consideration is whether this Court should invoke the provision under Section 427(1) of Cr.P.C. at this revisional stage and direct the sentence of imprisonment to run concurrently.
11. Section 427(1) of Cr.P.C. reads as follows:-
“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.”
12. It is observed by this Court in the decision reported in 2010 (3) CTC 43 as follows:-
“13. Here, the appellant was sentenced in three cases on the same day one after the other. While so, the Trial Court was competent to exercise its discretion in directing the subsequent (in the case decided subsequently) for the sentence run concurrently with earliest sentence in the case earlier decided. The learned Trial Judge has not exercised his discretion.
14. It is observed by the Hon’ble Gujarat High Court in the decision reported in Cruz Fernandes v. The State , 1970 Crl. L.J. 96 (Vol. 76, C.N.26), as follows:
The learned Magistrate did direct that the subsequent sentence passed on the same day in Criminal case No.168/P/68 should run concurrently with the sentence passed in Criminal case No. 170/P/68. He exercised the discretion vested in him. This discretion is to be judicially exercised. Each case has to be considered on its own facts and circumstances the decisions in other cases being illustrative. There is no such discretion vested in him under Section 397(2), and for obvious reasons. This Provision operates of its own accord. Section 397(1) does not say that it is only when a person is already undergoing a sentence of imprisonment in fall that it will have effect but not otherwise. The principle is that the sentence passed should operate and take effect immediately on conviction and cannot be postponed. This is understandable. The provisions of Section 35 of the said code are already inapplicable to the facts of this case. The Section visualizes sentences in cases of conviction of several offences at one trial. There were two trials in the case under consideration and, therefore, Section 397(1) could properly be invoked; it contemplates more than one trial. The learned Magistrate exercised his discretion under this provision presumably because the two offences in both cases were of a similar nature. This discretion does not seem to have been improperly exercised. The petitioner must be deemed to have undergone the sentence passed in Criminal Case No. 168/P/68 from the moment he was sentenced. Sect ion 397(1) does not say that the sentence of imprisonment already undergone shall be on a different day and not on the same day and not on the same day. It has to be understood in its plain sense. It contemplates a sentence anterior in time which a person is undergoing and also a subsequent sentence on a subsequent conviction.”
15. In the above decision the Section referred 397 of the old Code is equal and corresponding to the Section of 427 of the new Code.
16. It is also observed by the Hon’ble Bombay High Court in Sadasiv Chhokha Sable v. State of Maharashtra, 1993 Crl.L.J.1469, which runs as follows:
15. We must notice that the learned Public Prosecutor for the State had contended that Section 427, Cr.P.C. is not attracted in the instant matter because the petitioner was not undergoing a sentence of imprisonment as contemplated under that provision, when subsequent sentence was awarded. According to him, unless the offender is physically in jail to suffer the sentence of imprisonment at the time of subsequent sentence, Section 427(1), cannot be pressed into service. In our view, such an approach to the provision would not be object oriented. Normal principle is that sentences should take effect immediately on conviction. Criminal Procedure Code provides that where several sentences are passed, such sentences should run one after the other i.e. consecutively unless the Court directs otherwise i.e. concurrently. A person sentenced to imprisonment must, for the purpose of Section 427, be deemed to be undergoing that sentence from the very moment the sentence is passed. The accused may be on bail or in custody in the earlier case at the time of passing of the subsequent sentence. There cannot be legislative intention to deny the benefit of the provision even in a deserving case by virtue of the only fact that the convict is on bail or in custody or could not be taken within the portals of prison for some genuine reason. Literal construction on the terminology undergoing a sentence of imprisonment as suggested on denial of the state would lead to absurd results specially where two separate sentences are awarded one after the other on one day in two different trials. Either the learned Judge would not exercise the discretion only because ion the earlier case he had not gone inside the jail by that time or he will have to actually send the convict inside the jail for some time, and call him back immediately to pronounce judgment in the second case. We do not think such absurd and farcical situation was intended by the legislature.
17. As the appellant already been in jail for more than two years and already paid the fine amount in all the cases, this Court is of the opinion that ends of justice will be met if this Court now exercises its power under Section 427, Cr.P.C. and thereby directs that the sentence of imprisonment imposed on the appellant/accused in all three cases to run concurrently.”
13. It is observed by the Hon’ble Delhi High Court in the decision reported in AIR 1978 DELHI 138 as follows:-
“10. ……. Within the four corners of cl. (b) of S. 386 we do not find any impediment or bar in the way of an appellate Court to pass a direction contemplated by the provisions of S. 427 (1). When an accused while undergoing a sentence of imprisonment or imprisonment for life awarded in an earlier case is sentenced by a trial Court on a subsequent conviction, the trial Court may, on being apprised of the information that the accused is already undergoing a sentence in a previous conviction invoking the said provision of S. 427 (1) in consequence of the information furnished in its discretion, direct that the sentence awarded to the accused on his subsequent conviction shall run concurrent to the sentence he was already undergoing in an earlier case. If the trial Court by invoking the provisions of S. 427 (1) can give the requisite direction contemplated by the said section it is not understood how a bar can be read in the power of the appellate Court to examine the reasons which lead the trial Court to decline the prayer of the accused and on finding the reasons given being not in consonance with the exercise of judicial discretion to grant the necessary relief even on dismissing the appeal, maintaining the conviction and the sentence.
11. Such a relief is also open to an accused by invoking the revisional powers of the High Court or Sessions Court. A perusal of the provisions of S. 397 of the Code shows that the subject-matter of a revision is wider than the subject-matter of an appeal.
15. ……. In revision there are no visible limits on the powers of the Court to correct illegal or improper orders. Even in a case where the accused has not sought relief in terms of Section 427 (1) of the Code from the trial Court it would be open to him to seek such a relief by invoking the revisional powers of the Court on showing justifiable reasons for his omission.
16. There can be no dispute that the discretion vesting in a trial Court under S. 427 (1) has to be exercised on sound judicial basis and an order which proceeds on other considerations in declining the request of the accused to make his sentence awarded on subsequent conviction to run concurrent with the sentence he was undergoing at the time of his subsequent conviction, would be improper or open to challenge in revision.”
14. In view of the above principles, this Court is of the opinion that now, in these criminal revision cases this Court has no impediment to pass an order directing the sentence of imprisonment imposed on the accused/revision petitioner in all the five cases to run concurrently. Out of five cases, in four cases the Judgment was delivered by the trial Court on 31.01.2001 and in one case the Judgment was delivered by the trial Court on 19.02.2001.
15. Considering the same reasons already given for reducing the sentence of imprisonment imposed on the revision petitioner, now it is directed that the sentence of three months rigorous imprisonment imposed on the revision petitioner in each case shall run concurrently.
16. Except the modification regarding the sentence of imprisonment, all the five Criminal Revision Cases, filed by the revision petitioner/accused, are dismissed with the direction for sentences to run concurrently. The petitioner is directed to surrender before the trial Court within a period of 30 days from the date of receipt of copy of this order to undergo the remaining period of sentence of imprisonment. In case of failure on the part of the revision petitioner to surrender, the trial Court should take effective steps by issuing warrant against the revision petitioner/accused.
11.11.2010
Index : Yes
Internet : Yes
jrl
To
1. The II Additional Sessions Judge,
Erode.
2. The Judicial Magistrate No.I,
Erode.
T.SUDANTHIRAM,J.
Jrl
CRL.R.C.Nos.1410 to 1414/2001
11.11.2010