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2010 DIGILAW 462 (RAJ)

Pankaj Soni v. State of Rajasthan

2010-02-25

MAHESH CHANDRA SHARMA

body2010
Hon'ble SHARMA, J.—Heard learned counsel for the petitioner, learned counsel for the complainant and the learned Public Prosecutor. 2. These criminal miscellaneous petitions have been filed by the accused petitioner praying that the sentences passed in Criminal Case No. 42/2006, Criminal Case No. 43/2006, Criminal Case No. 1433/2005 and 1434/2005 by the Addl. Chief Judicial Magistrate Kota for the offence under Section 138 of the Negotiable Instruments Act, by the judgment and orders dated 11.7.2007, 11.7.2007, 22.5.2007 and 22.5.2007 respectively may be ordered to run concurrently. Since all the misc. petitions related for passing orders of sentences to run concurrently, they are being disposed by this common order. 3. In the misc. petitions filed by the petitioner, the petitioner prays as under: (i) S.B. Cr. Misc. Petition No. 741 of 2009 the petitioner prayed for passing an order that the sentence given to accused petitioner in criminal case No. 43 of 2006 offence under Section 138 Negotiable Act passed by Addl. Chief Judicial Magistrate Kota on 11.7.2007 shall run concurrently with sentence passed in Criminal case No. 1433/2005 passed by Addl. C.J.M. Kota on 22.5.2007 offence under Negotiable Instrument Act. (ii) In S.B. Cr. Misc. Petition No. 740 of 2009 the petitioner prayed for passing an order that the sentence given to accused petitioner in criminal case No. 43 of 2006 offence under Section 138 Negotiable Act passed by Addl. Chief Judicial Magistrate Kota on 11.7.2007 shall run concurrently with sentence passed in Criminal case No. 1433/2005 passed by Addl. C.J.M. Kota on 22.5.2007 offence under Negotiable Instrument Act and Criminal Case No. 42./2006 passed by Addl. CJM Kota on 11.7.2007 offence under Section 138 Negotiable Instruments Act. (iii) In S.B. Cr. Misc. Petition No. 739 of 2009 the petitioner prayed for passing an order that the sentence given to accused petitioner in criminal case No. 1434 of 2005 offence under Section 138 Negotiable Act passed by Addl. Chief Judicial Magistrate Kota on 11.7.2007 shall run concurrently with sentence passed in Criminal Case No. 1433/2005 passed by Addl. C.J.M. Kota on 22.5.2007 offence under Negotiable Instrument Act. 4. In sum and substance there were four criminal cases Nos. 42/2006, 1433/2005 and 1434/2005 against the petitioner pending before the ACJM Kota. By four different orders passed by the ACJM Kota, the petitioner was convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act. C.J.M. Kota on 22.5.2007 offence under Negotiable Instrument Act. 4. In sum and substance there were four criminal cases Nos. 42/2006, 1433/2005 and 1434/2005 against the petitioner pending before the ACJM Kota. By four different orders passed by the ACJM Kota, the petitioner was convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act. In Criminal case No. 14343/2005 on account of dishonour of cheque of Rs. 40,000/- he was awarded sentence of one year Simple Imprisonment and fine of Rs. 50,000/- and in default of payment of fine to further undergo 3 months simple imprisonment. In criminal case No. 1433/2005, on account of dishonour of cheque of Rs. 40,000/- awarded sentence of one year simple imprisonment and fine of Rs. 50,000/- and in default of payment of fine to further undergo 3 months simple imprisonment. In Criminal Case No. 42 of 2006 on account of dishonour of cheque of Rs. 40,000/- he was awarded sentence of six months simple imprisonment and fine of Rs. 40,000/- vide order dated 11.7.2007. In criminal case No. 43/2006 on account of dishonour of cheque of Rs. 40,000/- he was awarded sentence of six month simple imprisonment and fine of Rs. 40,000/- vide order dated 11.7.2007. 5. The learned counsel for the petitioner relying on State of Punjab vs. Madan Lal (2009) 5 SCC 238 = 2009(2) RLW 929 (SC) argued that the sentences awarded to the petitioner in all the four cases may be ordered to run concurrently. 6. The learned Public Prosecutor opposed the arguments and submitted that the petitioner committed four different crimines under the Negotiable Instruments Act and he was rightly sentenced by the learned ACJM Kota for the four offences and the sentence awarded to the petitioner cannot run concurrently. 7. I have heard the learned counsel for the parties and gone through the petitions filed by the petitioner and the judgment cited by the learned counsel for the petitioner. 8. In State of Maharashtra vs. Najakat alias Mubarak Ali ( 2001(6) SCC 311 = RLW 2001(3) SC 458) in Paragraphs 14 to 18 their Lordships of the Apex Court held as under: "14. The purpose of Section 428 of the Code is also for advancing amelioration to the prisoner. 8. In State of Maharashtra vs. Najakat alias Mubarak Ali ( 2001(6) SCC 311 = RLW 2001(3) SC 458) in Paragraphs 14 to 18 their Lordships of the Apex Court held as under: "14. The purpose of Section 428 of the Code is also for advancing amelioration to the prisoner. We may point out that the section does not contain any indication that if the prisoner was in jail as an under-trial prisoner in a second case the benefit envisaged in the section would be denied to him in respect of the second case. However, learned counsel for the appellant contended that the words of the same case in the section would afford sufficient indication that the benefit is intended to cover only for one case and not more than that. It must be remembered that the ideology enshrined in Section 428 was introduced for the first time only in the Code of Criminal Procedure, 1973. For understanding the contours of the legislative measure involved in that section, it is advantageous to have a look at the objects and Reasons for bringing the above legislative provision. We therefore extract the same here: "The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as under-trial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as under-trial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are under-trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. The Committee has also noted that a large number of persons in the overcrowded jails of today are under-trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil." 15. The purpose is therefore clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an under-trial prisoner. In other words, the period of his being in jail as an under-trial prisoner would be added as a part of the period of imprisonment to which he is sentenced. We may now decipher the two requisites postulated in Section 428 of the Code: (1) During the stage of investigation, inquiry or trial of a particular case the prisoner should have been in jail at least for a certain period. (2) He should have been sentenced to a term of imprisonment in that case. 16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, inquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words "if any" in the Section amplifies that if there is no balance period left after such deduction the convict will be entitled to be set fee from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, inquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him. 17. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, inquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him. 17. In the above context it is apposite to point out that very often it happens when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other count as well. 18. Reading Section 428 of the Code in the above perspective, the words `of the same case' are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words." 9. Agreeing with the view expressed by Justice Thomas in State of Maharashtra vs. Najakat alias Mubarak Ali (supra) Justice Phukan In the above judgment further observed in Para 44 as follows: 44. "The only question which according to me needs consideration is the true effect of the expression "same case" as appearing in Section 428 of the Code of Criminal Procedure. The provision is couched in clear and unambiguous language and states that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be one undergone by him during investigation, enquiry or trial in connection with the "same case" in which he has been convicted. The provision is couched in clear and unambiguous language and states that the period of detention which it allows to be set off against the term of imprisonment imposed on the accused on conviction must be one undergone by him during investigation, enquiry or trial in connection with the "same case" in which he has been convicted. Any other period which is not connected with the said case cannot be said to be reckonable for set off. The view of learned Brother Mr. Justice Thomas according to me accords the legislative intent. Acceptance of any other view would mean necessary (sic necessarily) either adding or subtracting words to the existing provision, which would not be a proper procedure, to be adopted while interpreting the provision in question." 10. In State of Maharashtra vs. Najakat alias Mubarak Ali (supra) the convictions were in terms of Section 138 of the Negotiable Instruments Act, 1881. In that case the High Court noted that all the transactions related to the family of the respondent and the matter related to different cheques issued by the respondent to the complainant party. For this purpose separate complaints were filed. The High Court accordingly directed that the sentences imposed by learned Additional Sessions Judge, Ludhiana and Sub Divisional Judicial Magistrate, Khanna were to run concurrently. In Najakat Alias case State of Punjab filed Criminal Appeal and the Apex Court on the basis of the judgment in State of Maharashtra vs. Najakat (supra) dismissed the appeal filed by the State of Punjab. 11. As per the decisions of the Apex Court in State of Punjab vs. Madan Lal (supra) and State of Maharashtra vs. Najakat (supra) the misc. petitions filed by the petitioner deserve acceptance. 12. In the result, the misc. petitions are allowed and it is directed that the sentences passed in Criminal Cases Nos. 42/2006, 43/2006, 1433/2005 and 1434/2005 by the ACJM Kota vide orders dated 11.7.2007 and 22.5.2007 shall run concurrently. The misc. stay applications filed along with the misc. petitions also stand disposed of.