Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
M.S. SONAK, NUTAN D. SARDESSAI, JJ.
Krishna Venkatesh — Appellant
Versus
Balbhim Malvankar — Respondent
Criminal Writ Petition No. 169 of 2019
Decided on : 11-09-2019
Negotiable Instruments Act, 1881 - Section 138 - Constitution of India - Article 21 – Criminal Procedure Code - Section 482 - undergo simple imprisonment – Claim of compensation – Bank - learned Counsel for the Petitioners submits that in the present case, learned Judicial Magistrate has not at all exercised discretion, which he was required to exercise in terms of Section 427 of CrPC. He submits that it is quite clear that the offences in respect of which four complaints came to be filed by Respondent No. 1 arise out of a single transaction by which the Petitioners took a loan of Rs.3,96,000/- from Respondent No. 1, the complainant. In these circumstances submits that the learned Judicial Magistrate was not only required to exercise discretion as contemplated under Section 427 of Code of Criminal Procedure but further, direct that the sentences run concurrently. He submits that otherwise for failure to repay the loan Petitioners will have to suffer incarceration of well over 10 years, which will violate the Petitioners rights guaranteed by Article 21 of the Constitution of India - He submits that the Petitioners were incarcerated since 17.11.2016 and as on the date of issuance of Certificate had undergone imprisonment of two years, 8 months and 9 days. He therefore submits that suitable directions be issued for the sentences to run concurrently with effect – Held, Honble Apex Court, however, upheld the view taken by the High Court that the substantive sentences in such cases should to run concurrently and not consecutively. The Honble Apex Court approved the basic rule of thumb over the years, i.e. the transaction rule for concurrent sentences. This rule provides that if a given transaction constitutes two offences under two enactments generally, it is wrong to award consecutive sentences. It is proper and legitimate to award concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different - Hobble Apex Court referred to its earlier decision in State of Maharashtra v/s. Najaket, 6 SCC 311 in which it was held that it is apposite to point out that very often it had happened when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the sentence to be suffered by him for one count of offence will, in fact be imprisonment for other counts as well. The Honble Apex Court finally upheld the view taken by the High Court for concurrent running of sentences - Applying the aforesaid principles to the facts of the present case, we are satisfied that the Petitioner is entitled to some relief by way of direction that the substantive sentences imposed upon him vide Judgments and Orders dated 17.11.2016, referred to in paragraph 3 of this Judgment and Order, must run concurrently and not consecutively – Order accordingly
JUDGMENT :
M.S. Sonak, J.
Heard Mr. K. Poulekar and Mr. Yadnyesh Kotkar for the Petitioner.
Heard Mr. Pravin Faldessai, Additional Public Prosecutor for Respondents no. 2 and 3.
Heard Mr. Balbhim Malvankar who appears in person.
Heard S. D. Lotlikar, Senior Advocate alongwith Mr. J. Karna who were requested to assist this Court as Amicus Curiae.
Heard Mr. D. J. Pangam, learned Advocate General alongwith Mr. Pravin Faldessai, learned Additional Public Prosecutor who were again requested to assist this Court as Amicus Curiae.
2. Rule. With the consent of and at the request of the learned Counsel for the parties. Rule is made returnable forthwith.
3. The Petitioners were tried and convicted by the learned Judicial Magistrate First Class at Mapusa Goa in the under-mentioned four cases for offences punishable under section 138 of the Negotiable Instruments Act, 1881 ("the Act"). The conviction and sentences were imposed on one and the same date and the same time:-
(a) Criminal Case No. OA/734/NIA/P/2010/F in which by judgment and order dated 17.11.2016, the Petitioners were sentenced to undergo simple imprisonment for a period of two years and further to pay compensation to the complainant, jointly and severally, an amount of Rs.99,000/- plus interest @ 9% per annum from 12.12.2009 till full payment subject to a maximum of double of the cheque amount. In default of the payment, the Petitioners were directed to undergo simple imprisonment for a period of 6 months.
(b) Criminal Case No. OA/735/NIA/P/2010/F in which by judgment and order dated 17.11.2016, the Petitioners were sentenced to undergo simple imprisonment for a period of two years and further to pay compensation to the complainant, jointly and severally, an amount of Rs.99,000/- plus interest @ 9% per annum from 09.12.2009 till full payment subject to a maximum of double of the cheque amount. In default of the payment, the Petitioners were directed to undergo simple imprisonment for a period of 6 months.
(c) Criminal Case No. OA/736/NIA/P/2010/F in which by judgment and order dated 17.11.2016, the Petitioners were sentenced to undergo simple imprisonment for a period of two years and further to pay compensation to the complainant, jointly and severally, an amount of Rs.99,000/- plus interest @ 9% per annum from 11.12.2009 till full payment subject to a maximum of double of the cheque amount. In default of the payment, the Petitioners were directed to undergo simple imprisonment for a period of 6 months.
(d) Criminal Case No. OA/737/NIA/P/2010/F in which by judgment and order dated 17.11.2016, the Petitioners were sentenced to undergo simple imprisonment for a period of two years and further to pay compensation to the complainant, jointly and severally, an amount of Rs.99,000/- plus interest @ 9% per annum from 10.12.2009 till full payment subject to a maximum of double of the cheque amount. In default of the payment, the Petitioners were directed to undergo simple imprisonment for a period of 6 months.
4. In all these matters it was the case of Respondent No. 1, the original complainant that the Petitioners had availed a friendly loan of Rs. 3,96,000/- for business purposes and assured repayment with interest. Further, the Petitioners, had issued four post-dated cheques dated 09.06.2017, 10.06.2017, 11.06.2017 and 12.06.2017 in the amount of Rs.99,000/- each, drawn on ICICI Bank, Mapusa Branch, Mapusa-Goa. Since the cheques were dishonoured, the Respondent No. 1 instituted the aforesaid four cases under section 138 of the said Act in the Court of Judicial Magistrate First Class at Mapusa Goa. By the aforesaid Judgment and orders delivered on the same date, at the same time by the same Magistrate, the Petitioners were convicted for offences under section 138 of the said Act and sentenced in the aforesaid terms.
5. The learned Judicial Magistrate First Class, in the aforesaid judgments and orders convicting the Petitioners did not indicate whether the sentences imposed upon the Petitioner
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
