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2020 Supreme(Ker) 212
IN THE HIGH COURT OF KERALA AT ERNAKULAM
R. NARAYANA PISHARADI, J.
C.T.K.Chandran, S/o. Chathu – Appellant
Versus
State Of Kerala – Respondent
Crl.MC.No.2367 OF 2020(E)
Decided on : 20-03-2020
Advocate Appeared:
For the Appellant : SRI.K.B.ARUNKUMAR
For the Respondent: SRI C K PRASAD-PP
IMPORTANT POINT
In case of imprisonment awarded in default of payment of fine, the accused may avoid it, by payment of the fine. Unless the Court directs the subsequent sentence to run concurrently with the previous sentence, the accused cannot club the sentence of imprisonment in default of payment of fine awarded in a case with imprisonment in default of payment of fine awarded on him in other cases.
Headnote:
Code of Criminal Procedure, 1973, Section 427(1) - Imprisonment in default of payment fine is not a sentence Section 427(1) of the Code can have no application to such imprisonment awarded on an accused and as such, imprisonment in default of payment of fine awarded on an accused in a case cannot be ordered to run concurrently with imprisonment in default of payment of fine awarded on him in other cases.
Statement of facts:
Whether imprisonment in default of payment of fine awarded on an accused in a case can be ordered to run concurrently with imprisonment in default of payment of fine awarded on him in other cases.
Finding of the Court:
Imprisonment in default of payment of fine cannot be deemed to be a sentence. It is a penalty which is incurred on account of non-payment of fine. A sentence is something which must be undergone unless it is set aside or remitted in part or in whole in appropriate proceedings. However, in case of imprisonment awarded in default of payment of fine, the accused may avoid it, by payment of the fine.
Result: CrlMC is dismissed.
ORDER :
The question that arises for consideration in this petition is, whether imprisonment in default of payment of fine awarded on an accused in a case can be ordered to run concurrently with imprisonment in default of payment of fine awarded on him in other cases.
2. The petitioner is the accused in the cases S.T Nos.68/2019, 69/2019 and 70/2019 on the file of the Court of the Judicial First Class Magistrate-I, Nadapuram.
3. The aforesaid cases were instituted upon the complaints filed against the petitioner by different persons for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
4. The petitioner was absconding in the aforesaid cases. The cases had been entered into the register of long pending cases. On 24.01.2019, the petitioner appeared in the trial court and he pleaded guilty to the offence alleged against him in all the three cases. The learned Magistrate found that the plea was voluntarily made by the petitioner and accepted it.
5. Learned Magistrate convicted the petitioner for the offence under Section 138 of the Negotiable Instruments Act in all the three cases. In the case S.T No. 68/2019, the petitioner was sentenced to imprisonment till the rising of the court and to pay a fine of Rs.1,90,000/-and in default of payment of fine, to undergo simple imprisonment for a period of three months. In the case S.T No. 69/2019, the petitioner was sentenced to imprisonment till the rising of the court and to pay a fine of Rs.26,000/- and in default of payment of fine, to undergo simple imprisonment for a period of one month. In the case S.T No. 70/2019, the petitioner was sentenced to imprisonment till the rising of the court and to pay fine of Rs.1,50,000/-and in default of payment of fine, to undergo simple imprisonment for a period of three months. In all the three cases, learned Magistrate directed that, if the fine amount was realised, it shall be paid as compensation to the complainant.
6. This petition is filed under Section 482 Cr.P.C by the accused praying that the imprisonment awarded to him in the three cases, in default of payment of fine, may be ordered to run concurrently.
7. Heard learned counsel for the petitioner and also the learned Public Prosecutor.
8. Section 427(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') provides that, when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.
9. Sub-section (1) of Section 427 of the Code provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment. Then, ordinarily, the subsequent sentence of imprisonment would commence at the expiration of the first term of imprisonment, unless the Court directs the subsequent sentence to run concurrently with the previous sentence.
10. It is manifest from Section 427(1) of the Code that the Court has the power and the discretion to issue a direction that the subsequent sentence of imprisonment shall run concurrently with the previous sentence of imprisonment. But, in the very nature of the power so conferred upon the Court, the discretionary power shall have to be exercised along judicial lines and not in a mechanical or pedantic manner. The legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction.
11. In the case of the petitioner, the three cases arise out of three different transactions. The complainant in the three cases are also different persons.
12. The more important question is whether the provision contained in Section 427(1) of the Code has application to imprisonment in defau
