Concurrent running of sentence us 138 Negotiable Instrument Act 1988 in two cheque dishonour complaint cases. Court empowered with discretion u/s 427 of CPC -Supreme Court
ABCAUS Case Law Citation:
1044 (2016) (10) SC
Important Case Law Cited:
V.K. Bansal vs. State of Haryana and Another (2013) 7 SCC 211
Brief Facts of the Case:
The appellant/defaulter had taken loan of Rs. 5 lacs from the respondent/ complainant to meet his personal needs. Within a short span of approx three months, he gain requested for another 5 lacs and promised to return the whole amount of Rs. 10 lacs soon. Having regard to the friendly relations, and on the persuasion by the appellant/defaulter, the respondent/complainant advanced a further amount of Rs.5 lacs to him as loan.
Towards repayment of the loan as above, the appellant had issued two cheques with consecutive numbers for Rs.5 lacs each. Both these cheques when presented at the scheduled dates, were bounced/dishonored with the remarks “funds insufficient”. Thereafter, the respondent/complainant issued legal notices and when they remained unresponded, complaints were filed by the respondent.
The Trial Court, in Januray 2004 convicted the appellant of the offence under Section 138 of the Negotiable Instrument Act, 1988 and awarded simple imprisonment for 10 months and fine of Rs.6,50,000/- as compensation in both the cases. In case of default of payment of compensation, the appellant was ordered to suffer simple imprisonment of six months in each case.
Having unsuccessful in appeal before District and Sessions Judge, the appellant preferred two revision petitions before the High Court corresponding to his convictions in the two complaint cases.
The Delhi High Court maintained the conviction but moderated the default sentence from simple imprisonment of six months to that of three months. However, the High Court declined to release the appellant by acting on his plea that he meanwhile had served the substantive as well as default sentence, if construed to have run concurrently.
Contentions of the Appellant/Defaulter before the Apex Court:
The appellant urged that as both the complaints filed by the respondents had arisen out of successive transactions in a series between the same parties and had been tried together on the basis of same set of evidence, the sentences awarded ought to run concurrently, the High Court had failed to appreciate the same.
It was submitted that if the total period of appellant’s custody was counted and if the two substantive sentences are construed to run concurrently, he has served not only the substantive sentences but also the sentence in default of fine as on date.
It was also submitted that the appellant came from a poor financial background, as well as is the sole bread earner of the family and that if the two sentences are to run consecutively, he would suffer grave injustice.
Observations made by the Apex Court:
The Supreme Court observed that both the complaints stem from two identical transactions between the same parties. That the loans advanced had been in the course of a series of transactions between the same parties on same terms and conditions. Significantly in both the cases, following the conviction of the appellant under Section 138 of the Negotiable Instrument Act 1988, the same sentences had been awarded. Thus, according to the Court there was an overwhelming identicalness in the features of both the cases permitting, the two transactions, though undertaken at different points of time, to be deemed as a singular transaction or two segments of one transaction.
The Apex Court observed that the law on the orientation of two sentences awarded to an offender following his conviction successively, to define the cumulative duration thereof is envisaged in Section 427 of the Code of Criminal Procedure, 1973 which empowers Courts with discretion to to issue a direction that a subsequent sentence shall run concurrently with the previous sentences.
The Supreme Court in V K Bansal case underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same.
It was also pointed out that in Benson vs. State of Kerala the Supreme Court extended the benefit of the said discretion and directed concurrent running of sentences awarded. Further It was noticeably recorded that the offences in the cases had been committed on the same day.
Thus, considering the nature of the transactions between the parties, the offences involved, the sentences awarded and the duration of the appellant’s custody, the Court opined that the appellant was entitled to the benefit of the discretion contained in Section 427 of the Code.
The Court ordered that the substantive sentences of 10 months simple imprisonment awarded to the appellant in the two complaint cases referred to hereinabove would run concurrently.