High Court of Kerala

C.T.K.CHANDRAN v. STATE OF KERALA

MANU/KE/1008/2020

20.03.2020

Criminal

Imprisonment in default of payment of fine awarded on an accused in different cases cannot be ordered to run concurrently

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.

The 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. Learned Magistrate convicted the Petitioner for the offence under Section 138 of the Act, 1881 in all the three cases.

This petition is filed under Section 482 of Code of Criminal Procedure, 1973 (CrPC) 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.

Section 427(1) of the CrPC 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.

It is manifest from Section 427(1) of the CrPC 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.

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. The more important question is whether the provision contained in Section 427(1) of the CrPC has application to imprisonment in default of payment of fine awarded to an accused. Section 68 of the Indian Penal Code, 1860 (IPC) provides that the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.

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.

Since imprisonment in default of payment fine is not a sentence, Section 427(1) of the CrPC can have no application to such imprisonment awarded on an accused. Petition dismissed.

Tags : Fine Payment Default

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