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2019 DIGILAW 278 (MP)

Hemant Uday v. State of M. P.

2019-04-02

VISHNU PRATAP SINGH CHAUHAN

body2019
ORDER 1. The applicant has filed this petition under section 482 of the Code of Criminal Procedure being aggrieved by the order dated 24.10.2018 passed by JMFC, Bhopal whereby learned JMFC had dismissed the prayer of the applicant for executing the jail sentence passed in Criminal Cases No. 9296/2014, 12251/2014 and 12253/2014 concurrently. 2. The facts giving rise to this petition, in short, are that the applicant has been convicted in three criminal cases under section 138 of Negotiable Instruments Act i.e. in Criminal Case No. 9296/2014 and sentenced to undergo one year RI along with compensation, in Criminal Case No. 12251/2014 under section 138 of Negotiable Instruments Act and sentenced to undergo one year RI along with compensation, in Criminal Case No. 12253/2014 under section 138 of Negotiable Instruments Act and sentenced to undergo one year RI along with compensation. The applicant filed an appeal before the appellate Court and the appellate Court had affirmed the conviction and sentence in each of the criminal cases. The applicant thereafter filed an application under sections 31 and 427 of CrPC before the Judicial Magistrate First Class, Bhopal alleging therein that conviction and sentence passed in the above mentioned three criminal cases have been affirmed by the appellate Court. In all, the conviction and sentences passed in different-different criminal cases on the same day, the applicant has been sentenced to undergo one year RI along with compensation in each of the criminal cases, therefore, he be allowed to serve all the sentenced for all criminal cases currently, however, learned JMFC Court has dismissed that application vide order dated 24.10.2018. The applicant has filed this petition under section 482 of CrPC for invoking the inherent power and seeking direction for allowing him to serve all the sentences passed in different-different cases concurrently. 3. Learned Panel Lawyer opposes the aforesaid prayer and submits that the applicant has been convicted and sentenced in different criminal cases, hence, there is no need to direct the concerned jail authority to run all these sentences concurrently and prays for dismissal of the petition. 4. 3. Learned Panel Lawyer opposes the aforesaid prayer and submits that the applicant has been convicted and sentenced in different criminal cases, hence, there is no need to direct the concerned jail authority to run all these sentences concurrently and prays for dismissal of the petition. 4. Learned counsel for respondent No. 2 submits that respondent No. 2 was the complainant before the trial Court in each criminal cases who filed complaint under section 138 of Negotiable Instruments Act against the applicant and after trial, on the basis of complaint filed by respondent No.2, applicant has been convicted and sentenced as mentioned herein above in different-different criminal cases. In these premises, he vehemently opposes the contentions raised by the applicant and prays to dismiss the petition. 5. Heard learned counsel for the parties and perused the documents filed along with this petition. 6. Learned counsel for the applicant has submitted copy of order dated 18.3.2009 passed in the case of Shafiq v. State of M.P. and another in which Coordinate Bench of this Court while allowing the application filed under section 427 read with section 482 of CrPC directed the applicant to suffer all the sentences passed in different-different criminal appeals concurrently. 7. Learned counsel for respondent No. 2 has relied upon the judgment passed by this Court in the case of Inayat v. Adarsh Vyapari Sakh Sahkarita Myd., [2015(2) MPWN113]. In that case the Co-ordinate Bench of this Court has categorically held that if any person is convicted in differentdifferent criminal cases for the offence under section 138 of Negotiable Instruments Act and is sentenced for that offence, the provisions of section 427(2) of CrPC will not attract. He has also relied upon the judgment passed by this Court in the case of Ramcharan v. State of M.P., [ 2012(II) MPWN 107 = 2012(2) MPHT 499], in which the Co-ordinate Bench of this Court while relying upon the judgment of Hon’ble apex Court in the case of M.R. Kudva v. State of A.P., [(2007)1 SCC (Cri) 468] denied to make sentence concurrent as given in the different criminal cases against the same accused. 8. 8. The Full Bench of this Court in the case of Shersingh v. State of M.P. [ 1989 JLJ 201 ], has categorically held that benefit of provision of section 427(2) of CrPC cannot be extended to the same accused if he has been convicted and sentenced in the different-different criminal cases. 9. In the present case, the applicant has been convicted in different cases i.e. Criminal Cases No. 9296/2014, 12251/2014 and 12253/2014 for the offence punishable under section 138 of Negotiable Instruments Act and sentenced to undergo one year RI in each cases. All the judgments have been passed in each cases separately. Appeals have been filed by the applicant separately. In the same situation while considering the above case laws, this Court is of the opinion that the benefit of provision of section 427(2) of CrPC cannot be extended to the applicant. 10. Hon’ble apex Court in the case of M.R. Kudva (supra), has categorically held that in such type of situation, the Court cannot invoke the inherent power under section 427(2) of CrPC Para-12 of the said judgment is relevant which reads as under : “12. However, in this case the provision of section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal. section 482 of the Code was, therefore, not an appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or section 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed.” 11. On the basis of forgoing discussions, this Court does not find any merit in the petition for issuing direction that the sentences passed in different-different criminal cases to run concurrently. 12. Accordingly, the petition is devoid of any merit and the same is hereby dismissed without any order as to cost.