K.Chinnasamy v. R.Palanisamy & Ors.

Bail SlipThe Appellant/Accused Viz.K.Chinnasamy,S/o.Karupana Gounderwas directed to be released on bail as per order of this Courtdated 19.10.2001 and made in Crl.M.P.Nos.7408,7410,7412,7414,7416and 7418/2001 in Crl.R.C.No.1410 to 1415/2001 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:11.11.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.Nos.1410 to 1414 of 2001K.Chinnasamy .. Petitioner in allCrl.R.Cs./AccusedVs.R.Palanisamy .. Respondent in Crl.R.C.No.1410/01/ComplainantV.M.Ramalingam .. Respondent in Crl.R.C.No.1411/01/ComplainantM/s.G.V. Finance & Investments, Solai Complex,127/A3, Perundurai Road, Erode -11. Rep. by its Managing Partner, Mr.Murthy. .. Respondent in Crl.R.C.Nos.1412 & 1413/01/ComplainantSri Sakthi Vinayaga Finance, by its Managing Partner C.Arunachalam,S/o.Chinnan,127/A-15, Sholai Complex, Perundurai Road, Erode. .. Respondent in Crl.R.C.No.1414/01/ComplainantPrayer in all Crl.R.Cs.:- Petitions filed under Section 397 r/w.401 of Cr.P.C., against the Judgment and conviction dated31.07.2001, made in Crl.A.Nos.50, 51, 52, 53 and 54 of 2001respectively on the file of the learned II Additional SessionsJudge, Erode, confirming the conviction by the Judgment dated31.01.2001,31.01.2001,31.01.2001,31.01.2001 and 19.02.2001 made https://hcservices.ecourts.gov.in/hcservices/ in C.C.Nos.275, 290, 682, 683 of 1998 and 55 of 1999 respectivelyon the file of the learned Judicial Magistrate No.I, Erode, under Section 138 of the Negotiable Instruments Act. For Petitioner in all Crl.R.Cs. : Mr.V.KrishnamoorthyFor Respondent in Crl.R.C.Nos.1410, 1411 & 1414/01: No Appearance For Respondent in Crl.R.C.Nos.1412 & 1413/01 : Mr.M.Guruprasad- - - - - COMMON ORDERThe revision petitioner in all these five cases is one andthe same. The respondents are different. In all these fivecases, the petitioner/accused was convicted by the trial Court aswell as by the Appellate Court for an offence under Section 138 ofthe Negotiable Instruments Act and sentenced to undergo six monthsrigorous imprisonment in each case.

Mr.V.Krishnamoorthy, learned counsel appearing for therevision petitioner in all these five cases submitted that thepetitioner was not challenging his conviction at present and hewas confining his argument only to the question of sentence. Amemo also had been filed by the learned counsel for the petitionerto that effect. The learned counsel for the petitioner furthersubmitted that the cheque amount involved in Crl.R.C.Nos.1410 and1411 of 2001 is Rs.1,00,000/- in each case; the cheque amountinvolved in Crl.R.C.Nos.1412 and 1413 of 2001 is Rs.1,50,000/- ineach case and the cheque amount involved in Crl.R.C.No.1414 of2001 is Rs.2,00,000/-. The learned counsel for the petitioner alsosubmitted that the petitioner was running several business but dueto heavy loss in the business, he could not repay the amount dueto others. The petitioner is also facing a case under TNPID Actbefore the Special Court under TNPID Act at Coimbatore in C.C.No.1of 2009. His properties have already been attached by the Government under the said Act and the properties of the petitionerwere already sold and the sale amount had been distributed to thedepositors by the competent Authority. As on date, the petitioneris employed in a private company and he is getting only a meagersalary.

The learned counsel for the petitioner further submittedthat the petitioner had already been in jail for a period of 85days and prayed for leniency with regard to the quantum of https://hcservices.ecourts.gov.in/hcservices/ sentence. Further, the learned counsel for the petitioner prayedbefore this Court to invoke the provision under Section 427(1) ofCr.P.C. and to direct the sentence of imprisonment to runconcurrently in all the cases. The learned counsel for thepetitioner also relied on a decision of this Hon'ble High Courtreported in 2010 (3) CTC 43 (G.Rengarajan Vs. State by Inspectorof Police, SPE/CID/CBI, Chennai) and also a decision of the Hon'ble Delhi High Court reported in AIR 1978 DELHI 138 (GopalDass Vs. The State).

Though notice was ordered to the respondent in all thefive cases, in Crl.R.C.No.1410 of 2001, notice could not be servedto the respondent/complainant and a report has been given by the Inspector of Police, Erode South Police Station stating that therespondent is not residing in the given address and he had vacatedhis premises at present. The Village Administrative Officer of35, Erode C.Kasipalaysm also has given a certificate to thateffect. Though notice had been served in Crl.R.C.Nos.1411 to 1414of 2001, only in Crl.R.C.Nos.1412 and 1413 of 2001Mr.M.Guruprasad, learned counsel is appearing on behalf of therespondent and there is no representation on behalf of therespondents in Crl.R.C.Nos.1411 and 1414 of 2001.

Mr.Guruprasad, learned counsel appearing for therespondent in Crl.R.C.Nos.1412 and 1413 of 2001 submitted thatalready the trial Court did not impose any fine amount on therevision petitioner/accused and no compensation amount also hasbeen awarded to the respondent/complainant. In such a case, thesentence of imprisonment imposed on the petitioner/accused shouldneither be reduced nor be made to run concurrently otherwise itmay amount to only flea-bite sentence.

This Court has considered the submissions and perusedthe records.

As the revision petitioner himself has not challengedhis conviction and even on a perusal of grounds no question of lawis raised in these criminal revision cases and both the trialCourt and the Appellate Court having found the revisionpetitioner/accused guilty under Section 138 of the NegotiableInstruments Act, this Court confirms the conviction on theaccused/petitioner in all the five cases under Section 138 of the Negotiable Instruments Act. 8. According to the petitioner herein, he was runningseveral business in the year 1998 namely two Poultry FeedFactories and also he was running a finance firm and a chit fund https://hcservices.ecourts.gov.in/hcservices/ firm. Due to heavy loss in the business, the petitioner could notrepay the amount and he is also facing a case under TNPID Actbefore the Special Court at Coimbatore for an offence under Section 5 of TNPID Act, which is punishable upto 10 years. It isalso brought to the notice of this Court that the properties ofthe petitioner had already been attached. The trial Court alsoobserved that the accused had suffered heavy loss in the businessand he was in difficulty and the trial Court did not impose anyfine on the revision petitioner/accused.

Considering the submissions made by the learned counselfor the revision petitioner, this Court feels that the sentence ofimprisonment imposed on the revision petitioner/accused could bereduced further. But at the same time, it should not be flea-bitesentence. Accordingly, the sentence of imprisonment imposed onthe accused/revision petitioner in all the five cases is reducedto a period of three months rigorous imprisonment.

The next question that arises for consideration iswhether this Court should invoke the provision under Section 427(1) of Cr.P.C. at this revisional stage and direct the sentenceof imprisonment to run concurrently.

Section 427(1) of Cr.P.C. reads as follows:-"427. Sentence on offender already sentenced for another offence. (1) When a person already undergoing a sentence ofimprisonment is sentenced on a subsequent conviction toimprisonment or imprisonment for life, such imprisonmentor imprisonment for life shall commence at the expirationof the imprisonment to which he has been previouslysentenced, unless the Court directs that the subsequentsentence shall run concurrently with such previoussentence: Provided that where a person who has been sentencedto imprisonment by an order under section 122 in defaultof furnishing security is, whilst undergoing suchsentence, sentenced to imprisonment for an offencecommitted prior to the making of such order, the lattersentence shall commence immediately. "

It is observed by this Court in the decisionreported in 2010 (3) CTC 43 as follows:-"

Here, the appellant was sentenced in threecases on the same day one after the other. While so, https://hcservices.ecourts.gov.in/hcservices/ the Trial Court was competent to exercise itsdiscretion in directing the subsequent (in the casedecided subsequently) for the sentence run concurrentlywith earliest sentence in the case earlier decided. Thelearned Trial Judge has not exercised his discretion.

It is observed by the Hon'ble Gujarat HighCourt in the decision reported in Cruz Fernandes v. TheState , 1970 Crl. L.J. 96 (Vol. 76, C.N.26), asfollows: “The learned Magistrate did direct that thesubsequent sentence passed on the same day in Criminal case No.168/P/68 should run concurrentlywith the sentence passed in Criminal case No.170/P/68. He exercised the discretion vested in him. This discretion is to be judicially exercised. Eachcase has to be considered on its own facts andcircumstances the decisions in other cases beingillustrative. There is no such discretion vested inhim under Section 397(2), and for obvious reasons. This Provision operates of its own accord. Section397(1) does not say that it is only when a person isalready undergoing a sentence of imprisonment infall that it will have effect but not otherwise. Theprinciple is that the sentence passed should operateand take effect immediately on conviction and cannotbe postponed. This is understandable. The provisionsof Section 35 of the said code are alreadyinapplicable to the facts of this case. The Sectionvisualizes sentences in cases of conviction ofseveral offences at one trial. There were two trialsin the case under consideration and, therefore, Section 397(1) could properly be invoked; itcontemplates more than one trial. The learnedMagistrate exercised his discretion under thisprovision presumably because the two offences inboth cases were of a similar nature. This discretiondoes not seem to have been improperly exercised. Thepetitioner must be deemed to have undergone thesentence passed in Criminal Case No. 168/P/68 fromthe moment he was sentenced. Sect ion 397(1) doesnot say that the sentence of imprisonment alreadyundergone shall be on a different day and not on thesame day and not on the same day. It has to beunderstood in its plain sense. It contemplates asentence anterior in time which a person isundergoing and also a subsequent sentence on asubsequent conviction. " https://hcservices.ecourts.gov.in/hcservices/

In the above decision the Section referred 397of the old Code is equal and corresponding to the Section of 427 of the new Code.

It is also observed by the Hon'ble Bombay HighCourt in Sadasiv Chhokha Sable v. State of Maharashtra,1993 Crl.L.J.1469, which runs as follows: “15. We must notice that the learned PublicProsecutor for the State had contended that Section427, Cr.P.C. is not attracted in the instant matterbecause the petitioner was not undergoing a sentenceof imprisonment” as contemplated under thatprovision, when subsequent sentence was awarded. According to him, unless the offender is physicallyin jail to suffer the sentence of imprisonment atthe time of subsequent sentence, Section 427(1),cannot be pressed into service. In our view, such anapproach to the provision would not be objectoriented. Normal principle is that sentences shouldtake effect immediately on conviction. CriminalProcedure Code provides that where several sentencesare passed, such sentences should run one after theother i.e. consecutively unless the Court directsotherwise i.e. concurrently. A person sentenced toimprisonment must, for the purpose of Section 427,be deemed to be undergoing that sentence from thevery moment the sentence is passed. The accused maybe on bail or in custody in the earlier case at thetime of passing of the subsequent sentence. Therecannot be legislative intention to deny the benefitof the provision even in a deserving case by virtueof the only fact that the convict is on bail or incustody or could not be taken within the portals ofprison for some genuine reason. Literal constructionon the terminology “undergoing a sentence ofimprisonment” as suggested on denial of the statewould lead to absurd results specially where twoseparate sentences are awarded one after the otheron one day in two different trials. Either thelearned Judge would not exercise the discretion onlybecause ion the earlier case he had not gone insidethe jail by that time or he will have to actuallysend the convict inside the jail for some time, andcall him back immediately to pronounce judgment inthe second case. We do not think such absurd andfarcical situation was intended by the legislature.” https://hcservices.ecourts.gov.in/hcservices/

As the appellant already been in jail for morethan two years and already paid the fine amount in allthe cases, this Court is of the opinion that ends ofjustice will be met if this Court now exercises itspower under Section 427, Cr.P.C. and thereby directsthat the sentence of imprisonment imposed on theappellant/accused in all three cases to runconcurrently. "13. It is observed by the Hon'ble Delhi High Court in thedecision reported in AIR 1978 DELHI 138 as follows:-"10. ....... Within the four corners of cl. (b)of S. 386 we do not find any impediment or bar in theway of an appellate Court to pass a directioncontemplated by the provisions of S. 427 (1). When anaccused while undergoing a sentence of imprisonment orimprisonment for life awarded in an earlier case issentenced by a trial Court on a subsequent conviction, the trial Court may, on being apprised of theinformation that the accused is already undergoing asentence in a previous conviction invoking the saidprovision of S. 427 (1) in consequence of theinformation furnished in its discretion, direct thatthe sentence awarded to the accused on his subsequentconviction shall run concurrent to the sentence he wasalready undergoing in an earlier case.