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TMI Blog2017 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... gotiable Instruments Act, 1881 by the respondent/complainant-Bank are that the petitioner had availed the OCC/OD limit of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) from the respondent/complainant-Bank since the year 2005. It is further alleged that the petitioner failed to adhere to the financial disciple and the loan were classified as NPA. Thereafter, the petitioner approached the respondent/complainant-Bank for settlement vide letters dated 09.03.2007 and 28.05.2007 and had issued certain cheques for repayment of the outstanding dues. The said cheques on presentation got dishonoured with remarks "insufficient funds" and the details of the said cheques are reproduced as under:- Sr. No. Cheque No. Amount Date of Issuance Return R Date emarks Legal Notice Issued by the petitioner Sanjay Kumar Basoya. In CC. No. 535341/2016 1. 092831 Rs. 2,50,000/- 29.05.2007 12.06.2007 insufficient funds 20.06.2007 2. 092830 Rs. 2,50,000/- 27.05.2007 12.06.2007 insufficient funds 20.06.2007 In CC. No. 535338/2016 3. 092829 Rs. 5,00,000/- 28.04.2007 25.07.2007 insufficient funds 02.08.2007 4. 092828 Rs. 2,50,000/- 27.04.2007 25.07.2007 insufficient f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the request of the counsel or otherwise for leniency on the point of substantive sentence on imprisonment? 7. The learned counsel for the petitioner has further submitted that the cheques in question were given under a proposal for settlement to the respondent/complainant-Bank and the appellate Court committed a mistake of law by awarding sentences separately and to run the said sentences consecutively in three cases between the same parties under single loan transaction and not concurrently. Reliance is placed on the following judgments:- 1) Lalit Kumar Sharma and Another vs. State of Uttar Pradesh and Another; (2008) 5 SCC 638. 2) V.K. Bansal vs. State of Haryana and Another; (2013) 7 SCC 211. 3) Benson vs. State of Kerala; MANU/SC/177/2016. 4) Shyam Pal vs. Dayawati Besoya and Ors.; MANU/SC/1363/2016. 5) Pankaj Kumar vs. Sunil Kumar Vaid; MANU/DE/3252/2011. 6) Thakur Arora vs. The State NCT of Delhi and Anr.; MANU/DE/1549/2009. 7) Nusun Genetic Research Ltd. and Ors. vs. The State of Telengana and Ors.; MANU/AP/0868/2015. 8. The learned counsel for the petitioner has further submitted that the conviction orders passed by the trial court is not in consonance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner under Section 138 NI Act beyond doubt whereas the petitioner has even failed to rebut the presumption in favour respondent/complainant-Bank. The petitioner has admitted the cheques in question, the dishonor of cheques are a matter of record, service of legal notices were effected on the petitioner which he has admitted in the cross-examination and the question of legally recoverable debt was also answered in positive by the petitioner himself. Therefore, the presumption under Sections 139/118(a) NI Act was applicable to the facts of the present case. Moreover, the petitioner is estopped from raising any plea on merits before this Court as the petitioner had not challenged the judgment of conviction passed by the trial Court and only prayed for leniency on the point of substantive sentence of imprisonment before the appellate Court therefore, the present revision petitions are liable to be dismissed for want of any merit. Reliance is placed of the judgments of the Hon'ble Supreme Court in the cases A.K. Vijaya Kumar vs. R. Mohan; MANU/SC/0520/2012 and Sampelly Satyanarayana Rao vs. Indian Renewable Energy Agency Ltd.; MANU/SC/1021/2016. 14. The instant petitions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2013 under Section 251 Cr.P.C. 17. In the instant case issuance of the cheques is not disputed by the petitioner. There is no dispute that the cheques in question belongs to the petitioner and the signatures on the same are made by him. 18. Furthermore, the argument of the learned counsel for the petitioner that the cheques issued were given under a proposal for settlement and reliance on the judgments Lalit Kumar Sharma (supra), V.K. Bansal (supra), Benson (supra), Shyam Pal (supra), Pankaj Kumar (supra), Thakur Arora (supra) and Nusun Genetic Research Ltd. (supra) is not convincing as in the instant case the cheques issued by the petitioner were in consequence of the OCC/OD limit of Rs. 50,00,000/- availed by the petitioner from the respondent/complainant-Bank which makes a legally enforceable liability qua against the petitioner. The reliance is placed on the judgment in the case Sampelly Satyanarayana Rao (supra) wherein the distinction has been drawn by the Apex Court which is reproduced as under:- "7. It will be appropriate to reproduce the statutory provision in question which is as follows: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. The question therein was whether post-dated cheque issued by way of advance payment for a purchase order could be considered for discharge of legally enforceable debt. The cheque was issued by way of advance payment for the purchase order but the purchase order was cancelled and payment of the cheque was stopped. This Court held that while the purchaser may be liable for breach of the contract, when a contract provides that the purchaser has to pay in advance and cheque towards advance payment is dishonoured, it will not give rise to criminal liability Under Section 138 of the Act. Issuance of cheque towards advance payment could not be considered as discharge of any subsisting liability. View to this effect of the Andhra Pradesh High Court in Swastik Coaters (P) Ltd. v. Deepak Bros. (1997) Crl. LJ 1942 (AP), Madras High Court in Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd. (1999) 1 CTC 6 (Mad), Gujarat High Court in Shanku Concretes (P) Ltd. v. State of Gujarat (2000) Crl LJ 1988 (Guj) and Kerala High Court in Supply House v. Ullas (2006) Crl. LJ 4330 (Ker) was held to be correct view as against the view of Delhi High Court in Magnum Aviation (P) Ltd. v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque. 13. Crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. 14. In Balaji Seafoods (supra), the High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is required is application of the well-known legal principles involved in the matter. *** 22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.05.2007, cheque no. 092830 of Rs. 2,50,000/- on 27.05.2007, cheque no. 092829 of Rs. 5,00,000/- on 28.04.2007, cheque no. 092828 of Rs. 2,50,000/- on 27.04.2007, cheque no. 092832 of Rs. 2,50,000/- on 24.04.2007 and cheque no. 092833 of Rs. 5,00,000/- on 30.07.2007, in favour of the respondent/complainant-Bank; 2) the aforesaid cheques were presented for encashment within a period of six months from the date on which they were drawn or within the period of their validity whichever is earlier; 3) the cheques were returned dishonoured with the remarks "Insufficient Funds" vide dishonour memos dated 12.06.2007 in cheque no. 092831 of Rs. 2,50,000/- and cheque no. 092830 of Rs. 2,50,000/-, 25.07.2007 in cheque no. 092829 of Rs. 5,00,000/-, cheque no. 092828 of Rs. 2,50,000/- and cheque no. 092832 of Rs. 2,50,000/- and 31.07.2007 in cheque no. 092833 of Rs. 5,00,000/-; 4) the respondent/complainant-Bank had sent legal notices dated 20.06.2007 for cheque no. 092831 of Rs. 2,50,000/- and cheque no. 092830 of Rs. 2,50,000/-, 02.08.2007 for cheque no. 092829 of Rs. 5,00,000/-, cheque no. 092828 of Rs. 2,50,000/- and cheque no. 092832 of Rs. 2,50,000/- and 02.08.2007 for cheque no. 0928 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed between the parties. It is also not in dispute that the payment so demanded was made by the petitioner within the stipulated period or subsequent period till date which attracts conviction under Section 138 of the Negotiable Instruments, Act, 1881. 22. The aforesaid six cheques issued by the petitioner to the respondent/complainant-Bank were to meet their liability for the OCC/OD limit of Rs. 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. 23. However, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court can impose sentence in default of payment of compensation awarded, reliance could be placed on the judgments Hari Singh vs. Sukhbir Singh And Others; 1988 4 SCC 551 and Suganthi Suresh Kumar vs. Jagdeeshan; 2002 2 SCC 420. 28. Section 427 of The Code Of Criminal Procedure, 1973 is reproduced as under:- " 427. Sentence on offender already sentenced for another offence. (1) 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: Provided that where a person who has been sentenced to imprisonment by an order under section 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 impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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