ABDUL GAFOOR Vs. ABDULLA

JUDGEMENT

(1.) This is a petition filed by the petitioner to have an order under Section 427 Cr.P.C to the effect that the substantive sentence of imprisonment imposed on the petitioner in C.C.Nos.263 of 2003 and 264 of 2003 by JFCM-II, Thamarassery shall run concurrently. The petitioner faced trial in the above two cases for the offences punishable under Section 138 of the N.I. Act, 1881. The complaints in both the cases have been filed by the common complainant alleging that the petitioner had borrowed certain amounts from the complainant, the first respondent herein and in discharge of that debt, the petitioner had issued two cheques which were dishonoured when the same were presented for encashment The dishonour of the cheques was due to insufficiency of funds in the account maintained by the petitioner with the bank. Further it is stated that the respondent had served the statutory notice to the petitioner and inspite of that the petitioner failed to pay the amount covered by the cheque, The complainant adduced evidence against the petitioner in both the cases and the trial court allowed the complaint with the finding that the petitioner is guilty of offence punishable under Section 138 of the N.I.Act. In C.C.263 of 2003 the petitioner Was Sentenced to undergo simple imprisonment for three months and to pay an amount of Rs. 86,000/- as compensation and in default of payment to undergo further imprisonment for three months. In C.C.264 of 2003, the petitioner was sen tended to undergo S.I for three months and to pay an amount of Rs. 1 lakh as compensation and in default to undergo S.I for three months. The petitioner had filed appeal and the appellate court confirmed the judgments of the trial court and now the petitioner submits that he is not in a position to pay the compensation and hence he may be permitted to undergo the substantive sentence of imprisonment ordered by the trial court concurrently. As per Section 427 Cr.P.C. the court can permit an accused to undergo imprisonment ordered in two cases concurrently if the court thinks it fit.

(2.) The question now raised before this Court is that whether the discretion available under Section 427 Cr.P.C can be invoked by the trial court alone or the appellate court or the revisional court or by this Court under Section 482 Cr.P.C. No doubt, the power can be exercised by the trial court, appellate court as well as the revisional court. The revisional court has no restriction as contained in Section 427 Cr.P.C for invoking the jurisdiction. The question whether this Court can exercise this jurisdiction under Section 482 Cr.P.C is to be considered. The counsel for the petitioner submits that since the petitioner was not in a position to pay the amount covered by the cheque, he became insolvent and if his prayer is rejected, he will be put to irreparable loss and hardship. That apart, the counsel submits that the offence now proved against him is under Section 138 of the N.I.Act. The offence under Section 138 is an offence without any mens rea but it is based on a negotiable instrument, viz, a cheque. If a cheque is issued in discharge of a legally enforceable debt and on presentation of the cheque for encashment, the same is dishonoured, an offence will come into existence under Section 138 of the N.L Act. So the basis for the formation of a crime under Section 138 of the N.I .Act is the transaction between two parties and the transaction is through a negotiable instrument and if so this Court can exercise the power available under Section 427 Cr.P.C by invoking the jurisdiction under Section 482 Cr.P.C.

(3.) To support this view, this Court relies upon the decision reported in Kailash Verma v. Punjab State Civil Supplies Corporation and Anr. where the apex court had considered the question of quashing a complaint filed under Section 406 IPC. The Apex Court held that though the complaint cannot be quashed as a matter of right, the power can be exercised sparingly. Following the same reasoning, this Court is of the view that the petitioner can be allowed to undergo the substantive sentence of imprisonment ordered in the above cases concurrently.