Sentences awarded in default of payment of fine/compensation cannot be directed to run concurrently: High Court of Karnataka

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF APRIL 2021 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION No.6459 OF 2020 M S M.M.FABS AND TOOLS REP. BY ITS PROPRIETOR SRI M.MURTHY AGED ABOUT 61 YEARS No.4 54 50 FT. ROAD 12TH CROSS CHOWDESHWARI NAGAR LAGGERE BENGALURU 560 078. SRI.NARASIMHA MURTHY S O KRISHNAPPA AGED ABOUT 50 YEARS R AT No.40 4TH CROSS VISHWANEEDAM POST BENGALURU 560 078. SMT.SAVITHRI @ SAVITHRAMMA W O NARASIMHA MURTHY AGED ABOUT 40 YEARS R AT No.40 4TH CROSS VISHWANEEDAM POST BENGALURU 560 078. BY SRI.H.R.VISHWANATH ADV. FOR SRI.VIJAYAKUMAR.K.O … PETITIONER THE CHIEF SUPERINTENDENT CENTRAL PRISONS PARAPPANA AGRAHARA BENGALURU 560 100. … RESPONDENTS BY SRI.H.R.SHOWRI. HCGP FOR R3 SRI.K.RAGHAVENDRA ADV. FOR R1 & R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO A) PASS AN ORDER HOLDING THAT THE ORDER DATED 27.11.2019 PASSED BY THIS HONOURABLE COURT IN CRL.RP.NO.361 2019 C W CRL.RP.NO.363 2019 AND THE ORDER DATED 27.11.2019 PASSED IN CRL.RP.NO.362 2019 SHALL RUN CONCURRENTLY. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.03.2021 THIS DAY THE COURT PRONOUNCED THE FOLLOWING: O R D E R This petition is filed under Section 482 of Cr.P.C praying this Court to pass an order holding that the order dated 27.11.2019 passed by this Hon ble Court in Crl.R.P.No.361 2019 C w. Crl.R.P.No.363 2019 and the order dated 27.11.2019 passed in Crl.R.P.No.362 2019 shall run concurrently to direct respondent No.3 to release the petitioner in view of having served the sentence of one year as per the orders of this Hon ble Court and to pass such orders or directions as this Hon ble Court deems just and proper in the facts and circumstances of the case. 3 The factual matrix of the case is that respondent No.1 had filed two complaints against this petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and the same were numbered as C.C.No.11268 2014 and C.C.No.11269 2014. Respondent No.2 who is the wife of respondent No.1 also filed the complaint invoking Section 138 of NI Act. Learned Magistrate after the trial considering the evidence in all the cases convicted and sentenced the accused for the offence punishable under Section 138 of NI Act and also in default of payment of fine compensation sentenced to undergo imprisonment for a period of three months. The said orders have been challenged before the Appellate Court and the Appellate Court allowed the appeal in part wherein default sentence of three months imprisonment has been imposed in all the three cases. Being aggrieved by the judgment passed by the First Appellate Court in Criminal Appeals the petitioner had preferred Criminal Revision Petition before this Court. This Court after hearing both the sides on the sentence to pay a fine compensation amount modified the sentence imposed by the earlier Courts and directed in default of making the payment to undergo imprisonment for a period of one year. However two Revision Petitions were clubbed together and another Revision Petition was disposed of independently. Learned Magistrate had issued two warrants against the petitioner herein and the petitioner is serving the sentence ever since from the date of 24.09.2019 and the said sentence of imprisonment for a period of one year has come to an end on 23.09.2020. However the petitioner has not yet been released and he is still detained in the prison. Therefore requested the jail authorities to release the petitioner herein and the jail authorities have not released him. In view of the inaction of jail authorities the present petition is filed. The main grounds urged in the petition is that the petitioner inspite of serving the sentence for a period of one year in view of the order passed by this Court the petitioner has been in the jail which is erroneous arbitrary and unconstitutional. In all the judgments and orders passed by the learned Magistrate there are no specific directions that the sentences shall run consecutively. In the absence of any specific 5 directions and in view of the order passed by this Court is silent and also the petitioner having already served the sentence of imprisonment for a period of one year it is just and necessary to hold the sentence passed against the petitioner to run concurrently. Learned counsel brought to the notice of this Court the provisions of Section 427of Cr.P.C. and prayed the Court to hold the sentence as concurrent. Learned counsel also relied upon the judgment in the case of V.K.Bansal v. State of Haryana and Another reported in 7 SCC 211. Referring to this judgment learned counsel would contend that the sentence so imposed on the petitioner ought to have been made as concurrent. Per contra learned counsel appearing for the respondents No.1 and 2 would vehemently contend that the cheques were issued in respect of different transactions. However three criminal cases are filed against the petitioner. In all total 10 cheques were issued for six cheques 2 cases are filed against the petitioner. In respect of other four cheques separate criminal cases are filed. Learned counsel would 6 vehemently contend that the transactions are not single transaction but different transactions and the complainants are also different. Hence the judgment of the Apex Court referred by the learned counsel for the petitioner is not applicable to the case on hand. Learned counsel also brought to the notice of this Court that in the judgment of the Apex Court it is also clear that in case of default sentence the same cannot be made as concurrent as contended by the learned counsel for the petitioner. The learned High Court Government Pleader for the State would submit that in case of default sentences there cannot be any order for making the sentence as concurrent sentence and the same should be consecutive. Learned HCGP would vehemently contend that the jailor’s report is also received and when the default sentence has been passed against the petitioner the question of making the same as concurrent sentence cannot be accepted as contended by the learned counsel for the petitioner. Having heard the learned counsel for the respective parties and also on perusal of the records it is not in dispute that total 10 cheques were issued by the petitioner and in respect of 6 cheques two criminal cases are registered. It is also not in dispute that in two cases the complainants are different. No doubt there is no dispute that both these complainants are husband and wife. Having perused the order passed by this Court Crl.R.P.No.361 2019 connected with Crl.R.P.No.363 2019 were considered together since in both the matters complainant is one and the same. This Court also while considering the matter on merit in para No.17 directed to make the payment as compensation. It is also observed that if the said amount is not paid within two months from the date of the order it carries an interest at the rate of 9% per annum for the delayed period. The order is also very clear that in default he has to undergo imprisonment for a period of one year. In Crl.R.P.No.362 2019 filed by the petitioner who is a different complainant had approached this Court questioning the sentence imposed by the learned Magistrate and in the said order at para No.17 this Court directed to pay the compensation amount and if the said amount is not paid within two months it carries interest at the rate of 9% per annum. It is further ordered that in default to make the payment he shall undergo imprisonment for a period of one year. 10. Having perused both the orders the default sentence is for a period of one year. Learned counsel appearing for the petitioner would vehemently contend that both these sentences should have run concurrently. The Apex Court in V.K.Bansal’s case discussed with regard to Section 427(1) of Cr.P.C. which stipulates the discretionary power of the Court to direct sentence to run concurrently and also discussed with regard to when it should be exercised. It is further held that no straight jacket approach can be laid down. However only substantive sentence can be directed to run concurrently and sentence awarded in default of payment of fine compensation cannot be directed to run concurrently. 11. Learned counsel appearing for the petitioner though relied upon this judgment failed to take note of the fact that the Apex Court categorically held that sentences awarded in default of payment of fine compensation cannot be directed to run concurrently. In the case on hand it is not in dispute that the petitioner has not paid the amount as directed by this Court but he has committed a default in payment of fine amount. When such being the case the sentence awarded in default of payment of fine compensation cannot be directed to run concurrently. 12. This Court would like to extract para No.18 of the judgment of the Apex Court wherein the Apex Court had discussed in detail regarding the sentences awarded in default of payment of fine compensation and held that Section 427 of Cr.P.C permits a direction for concurrent running of the substantive sentences with sentences awarded in default of payment of fine compensation which reads as hereunder: 18. Applying the principle of single transaction referred to above to the above fact situations we are the view that each one of transactions financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company appellant on the other. If different cheques which are subsequently dishonoured on presentation are issued by the borrowing company acting through the appellant the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so the substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run concurrently. We however see no reason to extend that concession to transactions in which the borrowing company is different no matter the appellant before us is the promoter Director of the said other companies also. Similarly we see no reason to direct running of the sentence concurrently in the case filed by State Bank of Patiala against M s Sabhyata Plastics and M s Rahul Plastics which transaction is also independent of any loan or financial assistance between the State Financial Corporation and the borrowing companies. We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine compensation shall not be affected by this direction. We do so because the provisions of Section 427 CrPC do not in our opinion permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine compensation. 13. Having perused the principles laid down in the judgment and also in the case on hand the petitioner has not 11 paid the amount and he has committed a default of payment of fine compensation amount the Apex Court held that Section 427 of Cr.P.C. do not permit to issue a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine compensation and hence this Court is of the view that the sentences passed by this Court cannot be directed to run as concurrently as the petitioner has been awarded default sentence and hence I do not find any error committed by the learned Magistrate or jail authorities in not considering the request of the petitioner herein as contended in In view of the discussions made above I pass the The petition is hereby rejected. the petition. Sd 

Summary: It is not in dispute that the petitioner has not paid the amount as directed by the Court, but he has committed a default in payment of the fine amount. When such being the case, the sentence awarded in default of payment of fine/compensation cannot be directed to run concurrently. this was held in M/S M.M.FABS AND TOOLS v. SRI. NARASIMHA MURTHY and Ors [CRIMINAL PETITION No.6459 OF 2020] in the High Court of Karnataka by the single bench consisting of MR. JUSTICE H.P. SANDESH. Facts are that respondents had filed three different complaints against the petitioner for the offenses punishable U/S138 NI Act. Learned Magistrate, after the trial, convicted and sentenced. The orders were challenged in three separate Criminal Revision Petitions wherein the sentence was modified and the petitioner was directed in default of making the payment, to undergo imprisonment for a period of one year. This petition has been filed praying for the orders to run concurrently. The counsel for the petitioner urged that the petitioner in spite of serving the sentence for a period of one year in view of the order passed by this Court is still detained in jail, which is erroneous, arbitrary, and unconstitutional. In all passed by the learned Magistrate, there are no specific directions that the sentences shall run consecutively, thus it is just and necessary to hold the sentence passed against the petitioner to run concurrently. The counsel appearing for the respondent submitted that the cheques were issued in respect of different transactions. However, three criminal cases are filed against the petitioner. He contended that the transactions are not a single transaction but different transactions and the complainants are also different. The Court also made reference to the judgment of Apex court inV.K.Bansal v. the State of Haryana and Another, and made the observation that “We make it clear that the direction regarding the concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 CrPC do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation.”
Considering the precedents and the facts of the case the court held that, the petitioner had not paid the amount and he has committed default of payment of fine/compensation amount, considering that the Apex Court held that Section 427 of Cr.P.C. does not permit to issue a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation, the court dismissed the petition.