2017 (7) TMI 544 - HC - Indian Laws

Cheques dishonored - Held that - There was an existing liability qua against the petitioner under Section 138 of NI Act and the Apex Court in the case Kusum Ingots 50, 00, 000/- availed by him and the contention of the learned counsel for the petitioner that the it forms part of one single transaction giving rise to one cause of action and the same could not be said to be distinct offences committed in each of the complaint cases to attract the provisions of Section 138 of the Negotiable Instruments Act having different cause of action is not convincing as there is no plea on record to suggest that the cheques were issued on the same day/time/place/date and were undated which have been misused by the respondent/complainant-Bank by putting different dates on the cheques. The cheques issued are of different dates and the legal demand notices issued by the respondent/complainant-Bank are of different dates constituting separate cause of action. Mere availing of the OCC/OD limit of 50, 00, 000/- does not ipso facto suggest that the offence committed is one. Whereas the cheques issued on the different dates constitute different cause of action under Negotiable Instruments Act. The trial Court correctly awarded substantive sentence to run consecutively rather than to award the sentence concurrently although the cheques issued by the petitioner were to meet their outstanding liability for the OCC/OD limit availed by him qua against the respondent/complainant-Bank but it does not form one single transaction rather constitute separate cause of action.

Issues Involved:
1. Validity of statutory appeal without challenging the conviction order.
2. Whether sentences should run consecutively or concurrently.
3. Legality of the conviction orders based on the facts and record of the case.
4. Applicability of Section 138 of the Negotiable Instruments Act (NI Act) for cheques issued under a settlement proposal.
5. Whether the appellate court erred by deciding the appeal only on the point of substantive sentence of imprisonment.

Detailed Analysis:

1. Validity of Statutory Appeal Without Challenging the Conviction Order:
The petitioner argued that the appellate court should not dispose of the statutory appeal only on the point of substantive sentence of imprisonment without addressing the merits of the conviction order. The petitioner contended that an appeal is a statutory right and cannot be ignored merely on the request for leniency on the sentence. The respondent countered that the petitioner had only sought leniency on the sentence and did not challenge the conviction itself, making the revision petition non-maintainable.

2. Whether Sentences Should Run Consecutively or Concurrently:
The petitioner argued that the sentences should run concurrently, citing judgments like Lalit Kumar Sharma vs. State of Uttar Pradesh and V.K. Bansal vs. State of Haryana. The respondent maintained that the petitioner committed separate and distinct offences and was rightly punished separately for each. The court held that the cheques issued on different dates constituted separate causes of action, and thus, the trial court correctly awarded substantive sentences to run consecutively.

3. Legality of the Conviction Orders Based on the Facts and Record of the Case:
The petitioner contended that the conviction orders were not in consonance with the facts and record of the case, alleging violations of the settled procedure of law. The respondent argued that the conviction was based on clear evidence, including the respondent's ability to establish the case beyond doubt and the petitioner's failure to rebut the presumption in favor of the respondent. The court found that the ingredients for taking cognizance under Section 138 NI Act were satisfied, making the conviction legally enforceable.

4. Applicability of Section 138 of the NI Act for Cheques Issued Under a Settlement Proposal:
The petitioner claimed that the cheques were given under a settlement proposal and should not attract the provisions of Section 138 NI Act. The respondent cited the Supreme Court judgment in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Agency Ltd., which clarified that if a post-dated cheque represents a legally enforceable debt at the time of issuance, Section 138 is applicable. The court agreed with the respondent, noting that the cheques were issued for repayment of an outstanding liability, thus falling under Section 138.

5. Whether the Appellate Court Erred by Deciding the Appeal Only on the Point of Substantive Sentence of Imprisonment:
The petitioner argued that the appellate court should have decided the appeal on merits rather than focusing solely on the sentence. The respondent countered that the petitioner had not challenged the conviction judgment and only sought leniency on the sentence. The court upheld the appellate court's decision, noting that the petitioner had admitted the issuance and dishonor of the cheques and did not dispute the legal notices, making the conviction under Section 138 NI Act valid.

Conclusion:
The court dismissed the revision petitions, finding no merit in the petitioner's contentions. The judgments of the trial court and the appellate court were upheld, affirming the conviction and the consecutive running of sentences. The court emphasized that the cheques issued by the petitioner constituted separate causes of action, justifying the consecutive sentences. The court also noted that the appellate court's decision to address only the sentence was appropriate given the petitioner's limited challenge.

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