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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
Prince Garg and Another – Appellants
Versus
State of Haryana and Another – Respondents
Criminal Revision Nos. 2001, 2358, 3262, 3677 of 2018
Decided On : 17-07-2019
Negotiable Instruments Act - Conviction under Section 138 - Cr.P.C. Section 31, 427 - IPC Section 72 - Summary
Fact of the Case:
The case involved four revision petitions against the judgment of conviction under Section 138 of the Negotiable Instruments Act, 1881 and order of sentence passed by the Court of Judicial Magistrate Ist Class, Panchkula. The petitions were related to separate cheques between the same parties bearing different dates, and the sentence awarded was to run consecutively.
Finding of the Court:
The Court found that the discretionary power under Cr.P.C. Section 427 was not exercised by the lower courts, and the intention of the convict was not honest. The Court also noted that the convicts had allegedly cheated various individuals and had not returned the payment made in 2011, indicating dishonesty.
Issues: The issues involved the applicability of Cr.P.C. Section 31, 427 and IPC Section 72, as well as the exercise of discretion by the lower courts and the dishonesty of the convicts.
Ratio Decidendi: The Court's decision was influenced by the discretionary power of the Court under Cr.P.C. Section 427, the dishonesty of the convicts, and the non-applicability of Cr.P.C. Section 31 in the present case.
Final Decision: All the revision petitions were dismissed, and the sentences in each case were to run consecutively.
JUDGMENT :
Anil Kshetarpal, J.
CRM No. 39102 of 2018 in CRR No. 3677 of 2018
1. For the reasons stated in the application, which is duly supported by an affidavit, delay of 114 days in filing the present revision petition is condoned.
Application is allowed.
CRM No. 34504 of 2018 in CRR No. 3262 of 2018
2. For the reasons stated in the application, which is duly supported by an affidavit, delay of 121 days in filing the present revision petition is condoned.
Application is allowed.
3. Main CASES
By this order, CRR Nos. 3677, 3262, 2001 and 2358 of 2018 (four revisions petitions) shall stand disposed of. All these revision petitions have been filed against judgment of conviction under Section 138 of the Negotiable Instruments Act, 1881 and order of sentence passed by the Court of Judicial Magistrate Ist Class, Panchkula sentencing petitioners to rigorous imprisonment for a period of one year in two separate complaints with respect to separate cheques between the same parties bearing different dates. Sentence awarded to run consecutively. Two appeals were preferred by the convicts-petitioners whereas two appeals were preferred by the complainant-victim for enhancement of the sentence awarded. Learned Additional Sessions Judge, Panchkula has dismissed all the four appeals.
4. Two revisions have been preferred by the complainant-victim seeking enhancement of the sentence whereas remaining two revisions have been filed by the convicts. Counsel for the complainant on 15.03.2019 confined his prayer to the sentence be ordered to run concurrently.
5. Learned counsel for the parties have drawn attention of the Court to Sections 31 and 427 of Cr.P.C. and Section 72 of the Indian Penal Code. It is apparent that Section 31 of Cr.P.C. is applicable only in a situation when different offences subject matter of one trial (case) are found to have been committed by the accused. In the present case, two different cheques were subject matter of two different complaints filed separately. Thus, Section 31 of Cr.P.C. has no applicability.
6. On reading of Section 427 of Cr.P.C. it is apparent that the Court is vested with a discretionary power to direct that the subsequent sentence shall run concurrently with such previous sentence. However, the Courts below have refused to exercise such power.
7. This Court has also examined the judgment relied upon by the learned counsel for the convicts in the case of V.K. Bansal vs. State of Haryana and Others, (2013) 3 SCC (Cri) 282, as also judgment in the case of State of Punjab vs. Madan Lal, (2009) 2 RCR (Cri) 602. In the case of V.K. Bansal (Supra), it was found that appellant before Hon'ble the Supreme Court was convicted in 15 different cases. While exercising discretion, the Court categorized those 15 cases in 3 different sets and thus, in each set, the sentence was ordered to run concurrently. In the case of State of Punjab (Supra), Hon'ble the Supreme Court upheld the discretion exercised by the High Court in three complaints under the Negotiable Instruments Act, 1881.
8. It may be noted here that the aforesaid question was referred to a Larger Bench of Hon'ble the Supreme Court in the case of O.M. Cherian @ Thankachan vs. State of Kerala and Others, (2015) 2 SCC 501 and Larger Bench held that the Court has a discretion to order sentence to be run concurrently although normally the sentences in each case would run consecutively. The larger Bench has discussed in detail the provisions of the Code of Criminal Procedure and the Indian Penal Code.
9. Thus, it is obvious that the power of the Court is discretionary.
10. Now on the touchstone of the aforesaid guidelines laid down, let us examine the present case. It has come in evidence that convict-petitioner Prince Garg had agreed to sell a residential flat in building Royal Empire (Royal Minar) at Zirakpur to the complainant- victim for a sum of Rs. 24,00,000/- in the year 2011 and received a sum of Rs. 18,20,000/-. Later on, it came to the notice of the victim that nei
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