2022 (7) TMI 412 - HC - Indian Laws

Dishonor of Cheque - concurrent running of sentences - whether the sentences should be ordered to be run concurrently under Section 427 of the Code of Criminal Procedure, 1973 where the petitioner-accused is being prosecuted for having issued four different cheques in discharge of his liability and four independent complaints have been filed relating to dishonour of each cheque? - HELD THAT - A perusal of the custody certificate shows that the petitioner has already undergone his complete sentence in the revision petition arising out of Appeal No. 47 dated 12.07.2017. Since concurrent running of sentences would only be considered when a person is undergoing actual imprisonment and keeping in view the fact that the petitioner has undergone his complete sentence in the Criminal Revision bearing No. 3403-2019 arising out of Criminal Appeal No. 47 dated 12.07.2017, the revision petition has been rendered infructuous as the petitioner is not undergoing any sentence in the said conviction. Therefore, no relief can be granted in the same. While reiterating the principles expounded in the case of NAGARAJA RAO VERSUS CENTRAL BUREAU OF INVESTIGATION 2015 (1) TMI 1480 - SUPREME COURT the Hon ble Supreme Court stated that it is legally obligatory upon the Court of first instance while awarding multiple punishments to specify as to whether the sentences are to run concurrently or consecutively. Concurrent sentence - dishonor of multiple check - multiple offences and thereafter seek concurrent running of the sentences - HELD THAT - A transaction in the nature of issuance of multiple cheques towards discharge of one single liability has a potential of great misuse on either sides and just as it may incite an accused to swell his liability and to not pay the same despite issuance of multiple cheques, at the same time, there is immense possibility that the creditor secures multiple cheques for each installment and lodges different complaints against default of each cheque and claim consecutive running of sentences in each of the said cases to seek confinement of a defaulter in custody for an indefinite period. The crucial test thus is the similarity of the transaction and not the quantum of the money involved. A Court is thus required to maintain a fine balance by imposing a sentence so that the reformatory, retributive and deterrent effects are balanced well. In the matter of STATE OF PUNJAB VERSUS MADAN LAL 2009 (3) TMI 912 - SUPREME COURT , the accused was convicted in 03 complaints filed under Section 138 of Negotiable Instruments Act, 1881. The High Court ordered the sentence to run concurrently in all the 03 cases. The said order of the High Court was upheld by the 3-Judge Bench of the Supreme Court. However, a full Bench of this Court in the matter of titled as Jang Singh versus State of Punjab 2007 (10) TMI 712 - PUNJAB AND HARYANA HIGH COURT had held that if an accused is a habitual offender and is found guilty on various counts and is suspected that he would be a menace to society if let loose, then the consecutive sentence should be awarded. An habitual offender should not be given the same treatment which may be extended to an offender who is not habitual. A perusal of the custody certificate shows that the petitioner has already undergone his complete sentence in the revision petition arising out of Appeal No. 47 dated 12.07.2017. Since concurrent running of sentences would only be considered when a person is undergoing actual imprisonment and keeping in view the fact that the petitioner has undergone his complete sentence in the Criminal Revision bearing No. 3403-2019 arising out of Criminal Appeal No. 47 dated 12.07.2017, the revision petition has been rendered infructuous as the petitioner is not undergoing any sentence in the said conviction. Therefore, no relief can be granted in the same. Remaining 03 petitions arising out of 3 different complaints that were all filed within a period of less than 10 days from one another - applicability of Section 219 Cr.P.C. - HELD THAT - The present case would not apparently label the petitioner as a habitual offender. In a matter of dishonor of cheque, such a presumption may be drawn where an accused has defaulted in repayment of various persons in a similar manner over a period of time in distinct, independent and unrelated events. But in a case of mere institution of separate complaints upon dishonour of multiple cheques issued in discharge of one single liability, the accused should not be categorized as a habitual offender. Hence, taking into consideration the nature of transaction and the precedent judgments as well as the statutory principles laid down by the Hon ble Supreme Court, and the statutory objective, it is opined that the complaints in question can be safely construed as a part of one single transaction. Sentencing of the petitioner - HELD THAT - The Hon ble Supreme Court has held in the matter of State of Punjab versus Madan Lal that the benefit of concurrent running of the sentence should be extended to the petitioner. It is, however, held by the Hon ble Supreme Court that the single transaction has to be carefully construed - The Hon ble Supreme Court has also held in the matter of SHYAM PAL VERSUS DAYAWATI BESOYA ANR. 2017 (4) TMI 955 - SUPREME COURT while dealing with the scope of Section 427 Cr.P.C., in a matter relating to proceedings under Section 138 of the Negotiable Instruments Act, 1881 that the power to direct concurrent running of sentence is discretionary. The accused in the said case was convicted in respect of two cases arising out of successive transactions in a series between the same parties and tried together. A transaction in the nature of issuance of multiple cheques towards discharge of one single liability has a potential of great misuse on either sides and just as it may incite an accused to swell his liability and to not pay the same despite issuance of multiple cheques, at the same time, there is immense possibility that the creditor secures multiple cheques for each installment and lodges different complaints against default of each cheque and claim consecutive running of sentences in each of the said cases to seek confinement of a defaulter in custody for an indefinite period. The crucial test thus is the similarity of the transaction and not the quantum of the money involved. A Court is thus required to maintain a fine balance by imposing a sentence so that the reformatory, retributive and deterrent effects are balanced well. As the question of sentence has been kept open by the petitioner and the High Court is seized of the said matter regarding sentence in exercise of the powers under Section 401 Cr.P.C., it is thus necessary to examine the issue of sufficiency of the punishment so imposed and as to whether, the High Court can, in exercise of the power conferred under Section 401 (2) Cr.P.C. read with Section 482 Cr.P.C. alter or modify the sentence so imposed by the Courts below to the prejudice of an accused. The lower Appellate Court having directed compensation to be paid to the respondent-complainant, a default punishment can be so imposed by the High Court in exercise of the powers vested in it under Section 357 (4) read with Section 401(2) Cr.P.C. and the order awarding sentence can be suitably modified - thus, even though compensation under Section 357 Cr.P.C. has been awarded by the lower Appellate Court in exercise of the powers under Section 357 (3) Cr.P.C., however, no default sentence has been imposed. Hence, while exercising powers under Section 357(4) read with Section 401 (2) Cr.P.C., the High Court seized of the matter in exercise of its revisional jurisdiction, the order awarding compensation is partly modified and it is directed that in the event of the petitioner-accused committing default in payment of compensation as directed by the Lower Appellate Court, he shall undergo a sentence of 06 months of simple imprisonment, as a maximum punishment prescribed for the offence under Section 138 of the Negotiable Instruments Act, 1881 is 02 years and by virtue of Section 65 of the Indian Penal Code, 1860 the default sentence ought not to exceed 1/4th of the maximum sentence so prescribed for the substantive offence. Petition allowed in part.

Summary

Issues Involved:
1. Whether the sentences should be ordered to run concurrently under Section 427 of the Code of Criminal Procedure, 1973, where the petitioner-accused is prosecuted for issuing four different cheques in discharge of his liability, leading to four independent complaints for cheque dishonour.

Issue-wise Detailed Analysis:

1. Concurrent Running of Sentences Under Section 427 Cr.P.C.:

The primary issue for consideration was whether the sentences for the petitioner-accused, who issued four cheques resulting in four independent complaints under Section 138 of the Negotiable Instruments Act, should run concurrently under Section 427 of the Cr.P.C. The Court examined the facts of each case, noting that the cheques were issued in close succession and were part of a single consolidated liability of Rs. 34 lakhs. The petitioner argued that the cheques, issued in close proximity, should be seen as part of one single transaction, thus justifying concurrent running of sentences.

Precedent Judgments on Concurrent Running of Sentences:

The Court referred to several judgments, including "V.K. Bansal versus State of Haryana and another" and "Nagpal Traders versus Davinder Singh," to ascertain the principles governing concurrent sentences. It emphasized that the discretion to order concurrent sentences should be based on the nature of the offences and the facts of the case. The Court noted that if multiple offences arise from a single transaction, concurrent sentences are generally favored to benefit the prisoner.

Determining Single Transaction:

The Court examined whether the offences constituted a single transaction by considering factors such as the proximity of time and place, unity of purpose, continuity of action, and whether the offences were intertwined. It concluded that the offences in question formed part of a single transaction due to the close proximity of the cheque issuance dates, the same parties being involved, and the same evidence being used to establish liability.

Sentencing and Default Sentence:

The Court noted that while the trial court imposed a sentence of one year of rigorous imprisonment for each offence, no fine or default sentence was imposed. The appellate court directed compensation equivalent to the cheque amounts but did not impose a default sentence for non-payment. The Court, exercising its revisional jurisdiction, modified the order to include a default sentence of six months of simple imprisonment in case of non-payment of compensation, ensuring that the default sentence runs consecutively and not concurrently with the substantive sentence.

Conclusion:

The Court ordered that the sentences in the remaining three petitions (CRR Nos. 3406-2019, 3411-2019, and 3415-2019) run concurrently. It also directed that in case of default in payment of compensation, the petitioner-accused would undergo a default sentence of six months of simple imprisonment, which would run consecutively. The respondent-complainant retains the right to recover the compensation despite the petitioner undergoing the default sentence. The petition in CRR No. 3403-2019 was dismissed as infructuous since the petitioner had already completed the sentence in that case.