Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 634 (RAJ)

Achalchand Sancheti v. State of Rajasthan

2010-03-19

DEO NARAYAN THANVI

body2010
JUDGMENT Hon'ble THANVI, J.-By this Misc. Petition under Section 482 Cr.P.C., petitioner Achalchand Sancheti, who has been convicted and sentenced on different dated in different four cases registered against him under the Negotiable Instruments Act, 1881, hereinafter referred to as "the Act" by the learned ACJM (Economic Offences), Jodhpur has prayed that the sentences awarded to him in all the four cases may be ordered to run concurrently, the details of which are as under: S. Case Date of Sentence No No. judgment 1 136/04 18.3.2006 Three months' S.I. & a fine of Rs. 10,000/- & in default, to further undergo one month's S.I. 2 137/04 18.3.2006` Three months' S.I. & a fine of Rs. 6,000/- & in default, to further undergo one month's S.I. 3 1731/03 18.3.2006 Three months' S.I. & a fine of Rs. 2,000/- & in default, to further undergo one month's S.I. 4 1225/04 14.2.2007 One year's S.I. & a fine of Rs. 50,000/- & in default, to further undergo three months' S.I. 2. Learned counsel while relying upon the decision of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs (Prevention) Ahmedabad reported in 1988 Cr.L.R. (SC) 769 and decisions of this Court in Paramjeet Singh vs. State of Rajasthan reported in 2007 Cr.L.J. 591 and Rahul alias Pappu vs. State of Rajasthan reported in 2009(2) Cr.L.R. (Raj.) 912, has submitted that though the language of Section 427(1) CrPC is to award consecutive sentence but it is subject to exception of running the sentences concurrently on a subsequent conviction to imprisonment, if the Court so directs. According to the learned counsel, under sub-section (2) of Section 427 Cr.P.C, even a life convict undergoing the sentence of imprisonment, is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, his subsequent sentence shall run concurrently with such previous sentence. According to him, if this rule of concurrent sentences is applicable to a hard core criminal, then why it should not be applied to a case, where the offences are of similar nature relating to the same transaction. 3. Having heard the arguments of Mr. Vineet Jain, learned counsel for the petitioner and Mr. According to him, if this rule of concurrent sentences is applicable to a hard core criminal, then why it should not be applied to a case, where the offences are of similar nature relating to the same transaction. 3. Having heard the arguments of Mr. Vineet Jain, learned counsel for the petitioner and Mr. Mahipal Bishnoi, learned Public Prosecutor & also upon going through the above citations in the light of the impugned judgments of the learned courts below, it will be appropriate to quote Section 427 CrPC, which reads as under: "427. Sentence on offender already sentenced for another offence.(1) When a person already undergoing a sentence of imprisonment is sentence 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." 4. From a bare perusal of the above sub-section (1) of Section 427 Cr.P.C., it appears that the normal rule is to award consecutive 'sentence on 40 subsequent conviction but the legislature in its wisdom has used the words "unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence," whereas under sub-section (2), when a person already undergoing a sentence of imprisonment for life is sentenced subsequently, in that case, his second sentence shall run concurrently with the previous sentence. When a life convict, who is sentenced for a serious crime, is permitted to undergo the sentence by ordering the same to run concurrently, then there is no reason why the sentences of convicts of lesser crime should not be ordered to run concurrently. Without going into the legislative intent by enacting sub-sections (1) & (2) of Section 427 CrPC, the o observation of the Hon'ble Supreme Court in Mohd. Without going into the legislative intent by enacting sub-sections (1) & (2) of Section 427 CrPC, the o observation of the Hon'ble Supreme Court in Mohd. Akhtar Hussain's case (supra) that the basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences, is quite relevant for the true interpretation of law on the subject. In the cited case, the accused was convicted in one case u/S. 137 of the Customs Act and in another case, under the Gold Control Act for smuggling of gold worth Rs. 12.5 crores and silver worth Rs. 11.5 crores. The Court observed that two cases under the Gold Control Act and Customs Act pertain to the same subject matter. While rejecting the plea of set off under Sec. 428 CrPC, the Hon'ble Supreme Court allowed the appeal and made the sentences of 7 years and four years in two different cases, to be concurrent by holding as follows: "In arriving at an appropriate sentence, the Court must consider, and some times reject, many factors. The Court must 'recognise, learn to control and exclude' many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence. In consecutive sentences, in particular, the Court cannot afford to be blind to imprisonment which the accused is already undergoing." 5. The sentences were also made concurrent in the cases of Paramjeet Singh and Rahul alias Pappu (supra) by this Court also, as referred-to above. 6. In the present case, the accused petitioner, in all the four cases, has been convicted u/S. 138 of the Act, which broadly punishes defaulter in commercial transactions on account of dis-honouring of the cheques. The period of sentence in first three cases is three months' S.I. with fine of Rs. 10,000/-, Rs. 6000/- and Rs. 2000/- respectively and in fourth case being Cr. Case No. 1225/04, he has been sentenced to one year's S.I. and a fine of Rs. 50,000/-. In first three cases, he has been sentenced on 18.3.06 by the ACJM (Economic Offences), Jodhpur and in fourth case, he has been sentenced to one year's S.I. vide judgment dt. 14.2.07 passed by the ACJM, CBI Cases, Jodhpur. The accused petitioner is behind the bars since 22.9.2009. All the four appeals have been dismissed. 50,000/-. In first three cases, he has been sentenced on 18.3.06 by the ACJM (Economic Offences), Jodhpur and in fourth case, he has been sentenced to one year's S.I. vide judgment dt. 14.2.07 passed by the ACJM, CBI Cases, Jodhpur. The accused petitioner is behind the bars since 22.9.2009. All the four appeals have been dismissed. However, in fourth case, as submitted by the learned counsel for the petitioner, wherein he was sentenced to one year's S.I., the term of imprisonment has been reduced to the period already undergone but he has not been released on account of consecutive sentences in all the four cases. As discussed above, as a matter of rule, every sentence is to be run consecutively by virtue of sub section (1) of Section 427 CrPC but the Court cannot shut its eyes when the offences relate to the similar transaction alike in the present case regarding dis-honouring of the cheques and can very well exercise its discretion by ordering the sentences to run concurrently. If both the clauses of Section 427 CrPC are read together, then the sentencing 1982 Kana Vs. State of Rajasthan (Bhagwati, V.J.) 2010(3) RLW Court should be liberal in exercising discretion to award the sentences concurrently, especially when the offences, relating to the same transaction, . are committed. 7. In Paramjeet Singh's case (supra), both the sentences were u/S. 379 IPC and in Rahul alias Pappu's case (supra), the offences were u/Ss. 392, 395 and 365 Ire. They were of course crimes of moral turpitude and the sentences have been ordered to run concurrently but in the present case, the conviction is based on commercial transaction. Though, I would not like to make any comment with regard to any act or omission being made punishable under o this Act and the sentences provided for in it but in practice, as is noticed under the garb of this Act, the Courts have been flooded with the litigation under this Act and virtually, they are being made alike recovery authorities for those who are facing trial in a fear of different sentence of imprisonment & fine. I would not like to restrain my words by saying that most of the courts in this State, particularly at Districts, Division and Capital Head quarters, are overburdened while disposing of these cases fulfilling the aspirations of the private creditors and Banks resulting in less importance to the cases of hard core criminals, who are hazardous to the Society and innocent persons languishing in jail during trial. Before summing up, I would like to state that the present case, so wherein the accused petitioner has been sentenced in four different cases under the Act, if his sentences are allowed to run consecutively, then the substantive sentence will be twenty one months and in default, further imprisonment of six months. In my view, allowing the sentences to run consecutively as provided for under Sec. 427(1) Cr.P.C. in the present case will be too harsh and tortuous to the accused petitioner resulting in disproportionate order of sentences for the act committed.. As it is the foremost task of administration of justice that while awarding sentences consecutively or concurrently, due regard has to be given to the mens rea behind the act or omission as well as the period of sentence, which is necessary for disposal of this misc. petition under Sec. 482 Cr.P.C. so as to secure the ends of justice. 8. Accordingly, the Misc. Petition is allowed and it is directed that the substantive sentences awarded to the accused petitioner Achalchand Sancheti under Sec. 138 of the Act in Cr. Regular Cases No. 136/04, 137/04, 35 1731/03 and 1225/04 shall run concurrently.