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2020 (9) TMI 1066
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.... 15.06.2020 passed in Criminal Case No. 450 of 2013, Umesh Tiwari Vs. Smt. Priya Arora, by the Court of Chief Judicial Magistrate, Nainital. (first case). By this order, an application filed under Section 427 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been rejected. 3. The first case was based on a complaint filed by respondent no. 2 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). According to the complaint, the petitioner alongwith her husband, under conspiracy, took loans on various dates in the month of August, 2010 from respondent no. 2. They did not repay it and after much insistence, a cheques was given, which when presented was not honoured. A notice was given but payment was not made. 4. The trial of the first case proceeded and the first case was decided on 13.05.2013 and the petitioner was convicted under Section 138 of the Act and sentenced thereunder. An appeal preferred by the petitioner was dismissed, but, an appeal for enhancement of the sentence preferred by respondent no. 2, being Criminal Appeal No. 76 of 2013, Umesh Tiwari Vs. Priya Arora was allowed by the Court of Additional District....
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....n to respondent no. 2. It is stated that the conviction of the petitioner was upheld even by the Hon'ble Supreme Court and the sentence imposed remained as such. C-482 No. 520 of 2020;- 8. This petition challenges the followings; (i) Judgment and order dated 26.06.2020 passed in Criminal Revision No. 45 of 2020, Priya Arora @ Priya Mishra Vs. Umesh Tiwari and Another, by the Court of District and Sessions Judge, Nainital, by which, the order dated 15.06.2020 passed in Criminal Case No. 449 of 2013, by the Court of Chief Judicial Magistrate, Nainital has been confirmed. (ii) Order dated 15.06.2020 passed in Criminal Case No. 449 of 2013, Umesh Tiwari Vs. Smt. Priya Arora, by the Court of Chief Judicial Magistrate, Nainital. (third case). By this order, an application filed under Section 427 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been rejected. 9. The third case was based on a complaint filed by respondent no. 2 under Section 138 of the Act. According to the complaint, the petitioner alongwith her husband, under conspiracy, took loans on various dates in the month of August, 2010 from respondent no. 2. They did not re....
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.... down in the cases of Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and Another, (1988) 4 SCC 183, State of Punjab Vs. Madan Lal, (2009) 5 SCC 238, V.K. Bansal Vs. State of Haryana and Another, (2013) 7 SCC 211 and Benson Vs. State of Kerala, (2016) 10 SCC 307. 14. In the case of Mohd. Akhtar Hussain (supra), the Hon'ble Supreme Court, while interpreting the provision of Section 427 of the Code, held as hereunder; "10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have 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." 15. In the case of Madan Lal (supra), the Hon'ble Supreme Court, in fact, followed the principle of law, as laid down in the case of Mohd. Akhtar Hussain (supra). In the case of V.K. Bansal (supra), the Hon'ble Supreme Court discussed the scope of Se....
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....h discretion, presupposes that it will be exercised on sound principles and not on whims. In the Criminal Procedure Code, there are no guidelines or specific provisions to suggest under what circumstances the various sentences of imprisonment shall be directed to run concurrently or consecutively. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427 (1) Cr.P.C. ...................................................................." 20. In the case of M.R. Kudva (supra), in fact, the Hon'ble Supreme Court discussed the scope of Section 482 of the Code, in cases, when it is invoked for exercise of jurisdiction under Section 427 of the Code and the Court categorically held that "However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction....
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....by the Bench of two Hon'ble Judges, but, thereafter, in the case of Madan Lal, the three Hon'ble Judges of Hon'ble Supreme Court on 05.03.2009, upheld a judgment of Punjab and Haryana High Court, passed in a proceedings under Section 482 of the Code read with Section 427 of the Code and the prayer in that petition was to the effect that quantum of punishment awarded may be permitted to run concurrently in respect of three convictions and sentences imposed. In fact, categorically in the case of Madan Lal (supra), the Hon'ble Supreme Court did not dealt with as to whether separate proceedings under Section 482 of the Code may be invoked for application of Section 427 of the Code, but, fact remains that an order passed by the High Court in a proceedings under Section 482 of the Code, where the provisions of Section 427 of the Code were sought to be invoked, was upheld. Impliedly, the Hon'ble Supreme Court in the case of Madan Lal (supra) held that separate proceedings under Section 482 of the Code may be taken for invoking the provision of Section 427 of the Code. Not only this, in the case of V.K. Bansal (supra) again, reference has been made to the judgment in th....
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....ss the Court directs that the subsequent sentence shall run concurrently. The question is when the Court directs for running the sentence concurrently. In the case of V.K. Bansal (supra), on which heavy reliance is placed by learned counsel for the petitioner, in paragraph 10 of it, the Hon'ble Supreme Court observed "there is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within a contemplation of Section 427 (1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises." 28. In fact, in the case of Neera Yadav (supra), it has further been discussed by Hon'ble Supreme Court as quoted hereinbefore. In all the three cases, it was the case of respondent no. 2 that petitioner took loan from her in the month of August, 2010 and for repayment, issued cheques which were not honoured. Now, in view of the judgment in the case of V.K. Bansal (supra), one thing is clear that this might fall within the definition of "same transaction" and it makes a ground for the petitio....