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2015 DIGILAW 575 (UTT)

Jogendra Kumar v. State of Uttarakhand

2015-12-17

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. 1. Present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 24.01.2015 passed by 1st Judicial Magistrate, Roorkee, District Haridwar in Case No.1807/2006 and to pass appropriate order regarding the total period of sentence which the applicant has to serve in lieu of all three cases numbered as case No.2024/2006, 2527/2006 and 1807/2006 for corresponding conviction of warrants drawn separately in these three cases. 2. One Smt. Sudesh Saini filed a criminal complaint case No.2024/2006 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) against accused-applicant in the court of 1st Judicial Magistrate, Roorkee. Vide judgment dated 18.09.2008, the accused-applicant was convicted under Section 138 of the Act and was directed to undergo rigorous imprisonment for one year alongwith a fine of Rs. 5000/-. In default of payment of fine, the applicant was directed to further undergo simple imprisonment for three months. The applicant was directed to pay a sum of Rs. 8,30,000/- to the complainant as compensation. 3. In another case, Tek Chand filed a case No.2527/2006 under Section 138 of the Act against the present applicant, wherein he was convicted under Section 138 of the Act and was directed to undergo rigorous imprisonment for one year alongwith a fine of Rs. 5000/-, vide judgment dated 18.09.2008. In default of payment of fine, the applicant was directed to further undergo simple imprisonment for three months. The accused-applicant was directed to pay a sum of Rs. 30 Lakhs to the complainant as compensation. 4. In the third case, complainant-Pawan Kumar Saini filed a case No.1807/2006 under Section 138 of the Act against the present applicant. Vide judgment dated 18.09.2008, the applicant was convicted under Section 138 of the Act and was directed to undergo rigorous imprisonment for one year alongwith a fine of Rs. 5000/-. In default of payment of fine, the applicant was directed to further undergo simple imprisonment for three months. The applicant was directed to pay a sum of Rs. 10,80,000/- to the complainant as compensation. 5. Feeling aggrieved, applicant-convict filed three different appeals being Criminal Appeal Nos.56/2008, 57/2008 & 58/2008 before the Additional Sessions Judge, Roorkee. The said three appeals were allowed and the applicant-convict was acquitted from the charge levelled against him, vide judgment and order dated 03.03.2010. The applicant was directed to pay a sum of Rs. 10,80,000/- to the complainant as compensation. 5. Feeling aggrieved, applicant-convict filed three different appeals being Criminal Appeal Nos.56/2008, 57/2008 & 58/2008 before the Additional Sessions Judge, Roorkee. The said three appeals were allowed and the applicant-convict was acquitted from the charge levelled against him, vide judgment and order dated 03.03.2010. Aggrieved against the order of acquittal, three criminal appeals bearing No.43 of 2010, 44 of 2010 and 45 of 2010 were filed by the complainants before this Court. Vide judgment dated 27.04.2013, the coordinate bench of this Court allowed the appeals, set aside the orders of acquittal passed by the Additional Sessions Judge, Roorkee and restored the orders dated 08.09.2008 passed by the 1st Judicial Magistrate, Roorkee. 6. Feeling aggrieved against the judgment dated 27.04.2013 passed by the coordinate bench of this Court, accused-applicant preferred S.L.P.(Crl.) bearing Nos.5123-5125/2013 before Hon’ble Supreme Court, which were dismissed on 09.07.2014. Accused accordingly surrendered before the Judicial Magistrate, Roorkee. Three conviction warrants of the convict were prepared and were sent to the jailor. Applicant-convict was, therefore, sent to jail. Applicant-convict moved an application before the Judicial Magistrate 1st, Roorkee with a prayer that all three sentences awarded to the applicant be directed to run concurrently. On the said application, the Judicial Magistrate 1st, Roorkee passed the following order on 24.01.2015: “Heard learned counsel Sri Sukhpal Singh, Adv. As per application, the accused Jogendra Kumar was convicted by this Court on 18.09.2008 in three different cases. Ld. counsel stated that this conviction has been upheld by the Hon’ble High Court also. Now through this application, it is prayed that the sentence order be modified and it be directed that the imprisonment in all these cases be connected concurrently. Since the accused was convicted in different cases, he has to undergo punishment one after the other other. Moreover, after pronouncing the judgment, this Court becomes functus officio and it can not hear such application for amending the nature of sentence. Therefore, the application being non-maintainable is dismissed at the outset.” 7. The accused was convicted in three different cases filed by different complainants. He was convicted in all the three cases on the selfsame day. He surrendered on 19.12.2014. Therefore, it will be presumed that he has to undergo one year’s rigorous imprisonment from this date. Therefore, the application being non-maintainable is dismissed at the outset.” 7. The accused was convicted in three different cases filed by different complainants. He was convicted in all the three cases on the selfsame day. He surrendered on 19.12.2014. Therefore, it will be presumed that he has to undergo one year’s rigorous imprisonment from this date. In other words, the period of one year’s rigorous imprisonment shall be computed from 19.12.2014 in each case. It appears that this confusion has crept in only because the applicant filed an application before the Judicial Magistrate on 24.01.2015. The confusion has also crept in probably because all the three criminal appeals were decided together by the coordinate bench of this Court on 27.04.2013. Had the application not been given by the applicant on 24.01.2015, probably such confusion would not have arisen, for in that case, the jailor would have computed one year’s R.I. from the day he surrendered in each case. It cannot, therefore, be said that the intention of the trial court was to direct the accused to undergo imprisonment consecutively (in three separate cases). Had it been in one criminal case and the convict been convicted for different penal sections, the accused would have been directed to undergo rigorous imprisonment consecutively. It is, therefore, clarified that all the sentences shall begin to run from 19.12.2014. If the accused has not paid the fine, further imprisonment awarded to him in default of the same will have to be undergone by the accused-convict. Needless to say that the convict has to pay the amount of compensation to each of the complainants, as has been directed by the trial court, before his final release from the jail. 8. Application under Section 482 Cr.P.C. stands disposed of accordingly.