TMI Blog2020 (9) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... e any judicial discretion for permitting the sentences imposed upon her to run concurrently and accordingly, this Court is of the view that the learned Court below on different premises, but, rightly rejected the application filed under Section 427 of the Code - Petition dismissed. - Criminal Misc. Application Nos. 516, 517 and 520 of 2020 - - - Dated:- 8-9-2020 - Ravindra Maithani , J. For the Appellant : T.P.S. Takuli, Advocate For the Respondents : Pratiroop Pandey, A.G.A., Sachin Panwar and Akhil Kumar Sah, Advocate JUDGMENT Ravindra Maithani, J. 1. Common question of law and facts arise in all these petitions, therefore, they are being decided by this common judgment. Since, three petitions are being disposed of together, it would be expedient to look into the facts briefly, of each case, separately. C-482 No. 516 of 2020;- 2. This petition challenges the followings; (i) Judgment and order dated 26.06.2020 passed in Criminal Revision No. 44 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. 450 of 2013, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed under Section 427 of the Code of Criminal Procedure, 1973 (for short 'the Code') has been rejected. 6. The second 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 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. 7. The trial of the second case proceeded and the second 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. 75 of 2013, Umesh Tiwari Vs. Priya Arora was allowed by the Court of Additional District Judge, Nainital on 26.09.2020. The conviction was already upheld, but, the sentence was increased to one year simple imprisonment and a fine of ₹ 1,15,000/-. In default of payment of fine, imprisonment for a further period of one mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing and perused the record. 12. In fact, after conviction in first case, second case and third case which was confirmed with enhancement of the sentence as stated hereinbefore, an application under Section 427 of the Code was filed by the petitioner in the Trial Court with the request that the sentences in all three cases may be directed to run concurrently and not consecutively. These three applications in all the three cases were rejected on 15.06.2020 by the Trial Court. These orders passed in all the three case were challenged by the petitioner in Revision. They were Criminal Revision No. 43 of 2020, Criminal Revision No. 44 of 2020 and Criminal Revision No. 45 of 2020. All were decided together by the District and Sessions Judge, Nainital on 26.06.2020 and dismissed the revision. These orders dated 15.06.2020 and 26.06.2020 are impugned herein. 13. Learned counsel for the petitioner would submit that loan was taken by the petitioner on different dates from respondent no. 2 and it forms part of same transaction, therefore, the petitioner ought to have been given benefit of Section 427 of the Code and the sentences should have been directed to run concurrently. In support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel would argue that, in fact, the respondent no. 2 is a 65 years old person, who despite having agitated his cause in a court of law did not get even a single penny, even after a decade. In support of his contention, learned counsel for respondent no. 2 placed reliance on the principles of law, as laid down in the case of State Vs. K.V. Rajendran and Others, (2008) 8 SCC 673, M.R. Kudva Vs. State of A.P. (2007) 2 SCC 772, Neera Yadav Vs. CBI, (2017) 8 SCC 757 and Ankush Shivaji Gaikwad Vs. State of Maharashtra, (2013) 6 SCC 770. 18. In the case of Ankush Shivaji Gaikwad (supra), in fact, Hon'ble Supreme Court has discussed the provisions of compensation to the victim. It is not specifically with regard to application of Section 427 of the Code. In the case of K.V. Rajendran (supra), the Hon'ble Supreme Court discussed reviewing of its own judgment or re-agitating an issue, which has already been decided and in paragraph 22 of it, observed Section 362 of the Code prohibits reopening of a final order except in the cases of clerical or arithmetical errors. 19. In the case of Neera Yadav (supra), in paragraph 70, the Hon'ble Supreme Court observed The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. 22. A bare perusal of the above Section reveals that as a general rule, sub-section 1 of it provides that sentences shall run consecutively but the last sentence, after a word unless provides that it is the courts' discretion to direct that the subsequent sentence shall run concurrently with any previous sentence. Here is the scope of discretion by the court. 23. First and foremost, it has to be seen as to whether in the independent proceedings, as in the present cases, the scope of Section 427 of the Code may be seen or not. In the case of M.R. Kudva (supra), the Hon'ble Supreme Court categorically held that in separate proceedings, the scope of Section 427 of the Code cannot be looked into. This judgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure the ends of justice. 24. In view of judgment in the case of V.K. Bansal (supra) and judgment in the case of Madan Lal (supra), which is a Larger Bench judgment than the judgment in the case of M.R. Kudwa (supra) and also subsequent on the point of time, it can be concluded that a separate proceeding under Section 482 of the Code is maintainable for application of Section 427 of the Code. This is one part. The question is whether it is a case fit for directing concurrent sentence in all the three cases. 25. One of the arguments raised on behalf of the respondent no. 2 is that, in fact, the petitioner has raised this plea before the Hon'ble Supreme Court when he filed appeal against conviction. 26. On behalf of the petitioner, it is argued that such a plea was not taken, but, the fact remains that neither the SLP nor the appeal filed in three cases before the High Court is before the Court. So, this Court refrains to make any observation as to whether any such plea was taken or not by the petitioner when their appeal was heard by the High Court or when their SLP was heard by the Hon'ble Supreme Court. 27. As stated, as a general rule, the sentences are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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