1. The appellant herein is the fourth accused in C.C.No.1 of 2008 on the file of the learned Additional Special Judge for CBI Cases, Chennai and he stands convicted for the offences under Sections 255, 258 and 420 I.P.C. and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo imprisonment for six months for the offence under Section 255 I.P.C.; sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo imprisonment for six months for the offence under Section 258 I.P.C.; and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to undergo rigorous imprisonment for six months for the offence under Section 420 I.P.C. and the sentence of imprisonment are ordered to run concurrently. Aggrieved by the said conviction and sentence, the appellant herein has preferred this Criminal Appeal.

2. The appellant pleaded guilty before the trial Court and on the basis of his plea of guilt, the trial Court convicted and sentenced him as stated above.

3. Mr.T.Arulraj, learned counsel appearing for the appellant has submitted that the two other co-accused viz., A.1 by name Abdul Karim Telgi @ Lala @ Karim Lala @ Big Boss and A.3 by name C.S.Balaji, who also pleaded guilty and were convicted by the trial Court preferred appeals before this Court and in the appeals preferred by them they were acquitted from the charge under Section 255 I.P.C. for the reason that the prosecution case do not constitute an offence under Section 255 I.P.C. The similar benefits must be extended to this appellant also. The learned counsel for the appellant has further submitted that the appellant is confined in jail from 22.03.2003 and though he was arrested in connection with another case, a final report was filed in this case on 21.12.2005 and this appellant was shown as one of the accused and P.T. Warrant also was issued and the appellant was produced before the trial Court periodically. As such, the appellant should have been treated as under-trial prisoner in this case also and the trial Court should have given the benefit of Section 428 of Cr.P.C. setting off the period of imprisonment prior to the date of judgment in this case. It is also submitted that in spite of the fact of detention of the appellant in Pune jail, being brought to the notice of the learned Special Judge, the benefit under Section 428 of Cr.P.C. has not been given to him and an injustice is caused to the appellant.

4. The learned Special Public Prosecutor appearing for CBI Cases has submitted that the conviction under Section 255 I.P.C. in respect of the co-accused has already been set aside as per the judgment of this Court rendered on 08.04.2010 in Crl.A.Nos.436 and 766 of 2008. It is further submitted that with regard to the application of Section 428 Cr.P.C. set off to this appellant he was not arrested by the respondent police in connection with this case and he was an under-trial prisoner in Pune in respect of another case of similar nature in which he was arrested. Being not arrested in this case his detention in prison in respect of another case the benefit of Section 428 Cr.P.C. cannot be given to this appellant.

5. This Court has considered the submissions made by the learned counsel on either side and also perused the materials available on record.

6. This Court had already set aside the conviction and sentence imposed on the first and third accused viz., Abdul Karim Telgi @ Lala @ Karim Lala @ Big Boss and C.S.Balaji for the offence under Section 255 I.P.C. in the judgment rendered in Crl.A.Nos.436 and 766 of 2008 and the judgment of which is also reported in 2010 (1) L.W. (Crl.) 621, wherein, in paragraph No.13, it is observed as follows:- "13. In view of the ratio laid down in the cases cited supra, this Court is of the considered view that if