Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 329 (KAR)

SRI GANAPATHI v. WIPRO LIMITED A COMPANY

2015-03-25

A.N.VENUGOPALA GOWDA

body2015
ORDER A.N.VENUGOPALA GOWDA, J. The petitioners are the partners of M/s. S.N. Distributors. In connection with the business of the said Firm, they had issued cheques in favour of respondent No.1. The cheques on presentation were dishonoured by the bank concerned, for insufficiency of funds. Consequently, respondent No.1 instituted complaints under S.138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) against the petitioners and the partnership firm. Complaints were tried by the XIV ACMM, Bengaluru, culminating in conviction of the petitioners and imposition of sentences of imprisonment, which ranges between 3 months to one year, besides imposition of different amounts of fine in each case and default sentence, in the event of non payment of amount awarded, in each of the case. The petitioners are in judicial custody from 19.06.2013. This petition was filed under S.482 of Cr.P.C., contending that instead of sentences awarded running consecutively, they ought to run concurrently. 2. Sri R.V. Shivananda Reddy, learned advocate, contended that the Magistrate having found the petitioners guilty and imposed sentence of imprisonment, has committed error in not directing running of the sentences concurrently. He submitted that the power vested by virtue of S.427 of Code of Criminal Procedure, 1973 (for short ‘the Code’) has not been exercised. Reliance in support was placed on the decision in BHIMASHANKAR Vs. STATE OF KARNATAKA, 2004 (2) KAR.L.J. 25 . 3. Sri Vijay Kumar Majage, learned HCGP, on the other hand contended that the cheque transactions being not the same and nine criminal complaints having been separately filed and tried, these petitioners were found guilty and thus, the offence being not one and the same, the Magistrate is justified in not exercising the discretion under Section 427 of Cr.P.C. He submitted that the transaction being not one and different cheques issued having bounced on different dates and the cause of action for each of the complaint being distinct and separate and thus, separate complaints having been filed, cases were separately tried and decided. He submitted that in the said background, the petitioners are not entitled to any relief. 4. Perused the record and considered the rival contentions. Point for consideration is: “Whether the punishment awarded to the petitioners can be permitted to run concurrently in respect of nine convictions and sentences imposed?” 5. S.427 of the Code deals with the sentence on an offender already sentenced for another offence. 4. Perused the record and considered the rival contentions. Point for consideration is: “Whether the punishment awarded to the petitioners can be permitted to run concurrently in respect of nine convictions and sentences imposed?” 5. S.427 of the Code deals with the sentence on an offender already sentenced for another offence. Nature of power available to the Court by virtue of the said section has been explained by the Apex Court in V.K. BANSAL VS. STATE OF HARYANA AND ANOTHER, (2013) 7 SCC 211 . Relevant portion reads as follows: “10. We are in the case at hand concerned more with the nature of power available to the Court under Section 427(1) of the Code, which in our opinion stipulates a general rule to be followed except in three situations: one falling under the proviso to subsection (1) to Section 427; the second falling under subsection (2) thereof; and the third where the court directs that the sentences shall run concurrently. It is manifest from Section 427(1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises.” 6. In STATE OF PUNJAB Vs. MADAN LAL, (2009) 5 SCC 238 , the respondent had issued different cheques and the same having been dishonoured, separate complaints were filed, alleging commission of offence under S.138 of the Act. The respondent was found guilty. The sentences imposed were directed to run concurrently i.e., in respect of three convictions and sentences imposed. State of Punjab, feeling aggrieved by the direction, that the sentences shall run concurrently, having appealed, Apex Court declined to interfere, in view of the ratio of law laid down in MOHD. AKHTAR HUSSAIN VS. The respondent was found guilty. The sentences imposed were directed to run concurrently i.e., in respect of three convictions and sentences imposed. State of Punjab, feeling aggrieved by the direction, that the sentences shall run concurrently, having appealed, Apex Court declined to interfere, in view of the ratio of law laid down in MOHD. AKHTAR HUSSAIN VS. ASSISTANT COLLECTOR OF CUSTOMS, (1988) 4 SCC 183 and the majority view in STATE OF MAHARASHTRA VS. NAJAKAT ALIA MUBARAK ALI, (2001) 6 SCC 311 . 7. In the case of V.K. Bansal (supra), the appellant was a director of group of companies and in connection with his business being conducted in the name of the companies, he availed financial assistance and had issued several cheques towards repayment of the amount borrowed in the name of the companies and the cheques on presentation, were dishonoured by the bank concerned, for insufficiency of funds and the respondent – Corporation instituted complaints under S.138 of the Act, in which, after trial, judgment/s of conviction and sentence/s of imprisonment was ordered. Appeals preferred having been dismissed, the only contention urged in the revision petition/s was, that instead of sentences awarded to him running consecutively, they ought to run concurrently. That contention having been rejected, holding that the sentence of imprisonment awarded was not excessive, so as to warrant its reduction or a direction for concurrent running of the same and Apex Court having been approached for relief, it was held as follows: “16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor.” 8. In the instant case, cheques had been issued by the petitioners in favour of respondent No.1. The cheques having been dishonoured on the ground of insufficiency of funds, nine complaints were filed. The cases were tried and decided separately, but on the same day and the petitioners were found guilty and were awarded sentence/s of imprisonment and fine. In the instant case, cheques had been issued by the petitioners in favour of respondent No.1. The cheques having been dishonoured on the ground of insufficiency of funds, nine complaints were filed. The cases were tried and decided separately, but on the same day and the petitioners were found guilty and were awarded sentence/s of imprisonment and fine. The details read thus: Particulars of the cases Sentenced for S.I. Default sentence C.C.No.26727/2011 One year 3 months C.C.No.27374/2011 Six months 3 months C.C.No.27375/2011 Six months 3 months C.C.No.27377/2011 Three months 1 month C.C.No.27378/2011 Nine months 3 months C.C.No.27379/2011 Six months 3 months C.C.No.27381/2011 Six months 3 months C.C.No.27382/2011 Six months 3 months C.C.No.27393/2011 Six months 3 months 9. Applying the principle of single transaction to the above factual situation, i.e., in terms of the proposition of law laid down in the case of V.K. Bansal (supra), there is justification for issue of a direction for concurrent running of sentences awarded in relation to dishonour of cheques, relevant to each such transaction. 10. In the case of Bhimashankar (supra), multiple sentences having been imposed and there being obligation on the part of the Court to specify, as to whether the sentences should run concurrently or consecutively, finding omission in the matter of such specification, it was held, that inherent power can be exercised to correct the error and order release of the accused, who has already served sentence. 11. In view of the above, substantive sentence awarded to the petitioners, in each case, related to the transaction with the respondent No.1, referred to above, ought to run concurrently. There being omission on the part of the Magistrate, in order to secure the ends of justice and give effect to the provision of the Code, the case being covered by the decision in V.K. Bansal (supra), the petitioners are entitled to succeed. 12. However, it is made clear that the direction regarding concurrent running of sentence is limited to substantive sentences only and the sentences which the petitioners have been directed to undergo in default of payment of fine/compensation, shall not be affected by the direction issued with regard to the running of sentences concurrently. In the result, petition is allowed in part. Substantive sentences awarded to the petitioners by the XIV ACMM, Bengaluru in C.C. Nos. 26727/2011, 27374/2011, 27375/2011, 27377/2011, 27378/2011, 27379/2011, 27381/2011, 27382/2011, 27393/2011 shall run concurrently.