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Negotiable Instruments Act – Punishments -substantive punishments- concurrently – default of fine punishment- consecutively = whether the High Court was right in declining the prayer made by the appellant for a direction in terms of Section 427 read with Section 482 of the Code of Criminal Procedure for the sentences awarded to the appellant in connection with the cases under Section 138 of the Negotiable Instruments Act filed against him to run concurrently. = Applying the principle of single transaction referred to above to the above fact situations we are of the view that each one of the loan transactions/financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run concurrently. We, however, see no reason to extend that concession to transactions in which the borrowing company is different no matter the appellant before us is the promoter/Director of the said other companies also. – We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 of the Cr.P.C. do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation.= In the result, these appeals succeed but only in part and to the following extent: 1) Substantive sentences awarded to the appellant by the Courts of Judicial Magistrate, First Class, Hissar and Additional Chief Judicial Magistrate, Hissar, in Criminal complaint cases No.269-II/97; No.549-II/97; No.393-II/97; No.371-II/97; No.372-II/97; No.373-II/97; No.877-II/96; No.880-II/96; No.878-II/96; No.876-II/96; No.879-II/96; No.485-II/96 relevant to the loan transaction between Haryana Financial Corporation and Arawali Tubes shall run concurrently. 2) Substantive sentences awarded to the appellant by the Court of Judicial Magistrate, First Class, Hissar in Criminal complaint cases No.156-II/1997 and No.396-II/1998 between Haryana Financial Corporation and Arawali Alloys relevant to the transactions shall also run concurrently; 3) Substantive sentences inter se by the Court of Judicial Magistrate,First Class, Hissar in the above two categories and that awarded in complaint case No.331-II/97 shall run consecutively in terms of Section 427 of the Code of Criminal Procedure. 4) No costs.

   published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40532

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.836-851 OF 2013
(Arising out of S.L.P. (Crl.) Nos.10023-10038 of 2011
V.K. Bansal …Appellants

Versus

State of Haryana and Ors. etc. etc. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. The short question that falls for determination in these appeals by
special leave is whether the High Court was right in declining the prayer
made by the appellant for a direction in terms of Section 427 read with
Section 482 of the Code of Criminal Procedure for the sentences awarded to
the appellant in connection with the cases under Section 138 of the
Negotiable Instruments Act filed against him to run concurrently.
3. The material facts are not in dispute. The appellant is a Director in
a group of companies including Arawali Tubes Ltd., Arawali Alloys Ltd.,
Arawali Pipes Ltd. and Sabhyata Plastics Pvt. Ltd. The appellant’s case
before us in that in connection with his business conducted in the name of
the above companies, he had approached the respondent, Haryana Financial
Corporation for financial assistance and facilities. The Corporation had
accepted the requests made by the Companies and granted financial
assistance to the first three of the four companies mentioned above.
Several cheques towards repayment of the amount borrowed by the appellant
in the name of the above companies were issued in favour of the Haryana
Financial Corporation which on presentation were dishonoured by the banks
concerned for insufficiency of funds. Consequently, the Corporation
instituted complaints under Section 138 of the Negotiable Instruments Act
against the appellant in his capacity as the Director of the borrowing
companies. These complaints were tried by Judicial Magistrates at Hissar
culminating in the conviction of the appellant and sentence of imprisonment
which ranged between 6 months in some cases to one year in some others
besides imposition of different amounts of fine levied in each complaint
case and a default sentence in the event of non payment of amount awarded
in each one of those cases.
4. Aggrieved by his conviction and the sentence in the cases filed
against him the appellant preferred appeals which were heard and dismissed
by the Additional Sessions Judge, Hissar in terms of separate orders passed
in each case. In some of the cases the Appellate Court reduced the sentence
from one year to nine months.
5. The appellant then approached the High Court by way of revision
petitions. The High Court dismissed 15 out of 17 revisions petitions in
which the appellant was convicted. The remaining two revision petitions
are still pending before the High Court. The High Court noticed that the
appellant had not questioned the correctness of the conviction before the
appellate Court which disentitled him to do so in revision. That position
was, it appears, not disputed even by the appellant, the only contention
urged before the High Court being that instead of the sentences awarded to
him running consecutively they ought to run concurrently. That contention
was turned down by the High Court holding that the sentence of imprisonment
awarded to the appellant was not excessive so as to warrant its reduction
or a direction for concurrent running of the same. The High Court noted:
“As regards sentence, keeping in view the amount of cheques,
sentence of simple imprisonment for six months in each case
cannot be said to be excessive so as warrant reduction or
direction for concurrent running of the sentences in all the 8
cases. Even sentence in default of payment of fine, which is
huge amount, also cannot be said to be excessive”.
6. The revision petitions filed by the appellant along with the criminal
miscellaneous applications moved under Section 482 of the Cr.P.C. were
accordingly dismissed. The present appeals assail the correctness of the
orders passed by the High Court which are no doubt separate but in similar
terms.
7. Learned counsel appearing for the appellant strenuously argued that
the High Court has committed an error in declining the prayer made by the
appellant for an appropriate direction to the effect that the sentences
awarded to the appellant in the cases in which he was found guilty ought to
run concurrently and not consecutively. It was urged that the trial Court
and so also the appellate and the revisional Courts were competent to
direct that the sentences awarded to the appellant should run concurrently.
The power vested in them to issue such a direction has not been properly
exercised, contended the learned counsel. Reliance in support was placed
upon the decision of this Court in State of Punjab v. Madan Lal (2009) 5
SCC 238.
8. Section 427 of the Code of Criminal Procedure deals with situations
where an offender who is already undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to imprisonment or imprisonment for
life. It provides that 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. Section 427 may at
this stage be extracted:

“427. Sentence on offender already sentenced for another offence
– (1) when an person already undergoing 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
imprisonment for a term or imprisonment for life, the subsequent
sentence shall run concurrently with such previous sentence.”
9. That upon a subsequent conviction the imprisonment or imprisonment
for life shall commence at the expiration of the imprisonment which has
been previously awarded is manifest from a plain reading of the above. The
only contingency in which this position will not hold good is where the
Court directs otherwise. Proviso to sub-section (1) to Section 427 is not
for the present relevant as the same deals with cases where the person
concerned is sentenced to imprisonment by an order under Section 122 in
default of furnishing security which is not the position in the case at
hand. Similarly sub-section (2) to Section 427 deals with situations where
a person already undergoing a sentence of imprisonment for life is
sentenced on a subsequent conviction to imprisonment for a term or
imprisonment for life. Sub-section (2) provides that the subsequent
sentence shall in such a case run concurrently with such previous sentence.

10. We are in the case at hand concerned more with the nature of power
available to the Court under Section 427(1) of the Code, which in our
opinion stipulates a general rule to be followed except in three
situations, one falling under the proviso to sub-section (1) to Section
427, the second falling under sub-section (2) thereof and the third where
the Court directs that the sentences shall run concurrently. It is manifest
from Section 427(1) that the Court has the power and the discretion to
issue a direction 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, wooden or pedantic manner. It is difficult
to lay down any strait jacket approach in the matter of exercise of such
discretion by the Courts. There is no cut and dried formula for the Court
to follow in the matter of issue or refusal of a direction within the
contemplation of Section 427(1). Whether or not a direction ought to be
issued in a given case would depend upon the nature of the offence or
offences committed, and the fact situation in which the question of
concurrent running of the sentences arises. High Courts in this country
have, therefore, invoked and exercised their discretion to issue directions
for concurrent running of sentence as much as they have declined such
benefit to the prisoners. For instance a direction for concurrent running
of the sentence has been declined by the Gujarat High Court in Sumlo @
Sumla Himla Bhuriya and Ors. v. State of Gujarat and Ors. 2007 Crl.L.J. 612
that related to commission of offences at three different places resulting
in three different prosecutions before three different Courts. The High
Court observed:
“The rule of ‘single transaction’ even if stretched to any
extent will not bring the cases aforesaid under the umbrella of
‘single transaction’ rule and therefore, this application fails.
The application is rejected.”
11. Similarly a direction for concurrent running of sentence has been
declined by the same High Court in State of Gujarat v. Zaverbhai Kababhai
1996 Crl.L.J. 1296 which related to an offence of rape committed at
different places resulting in conviction in each one of those offences in
different prosecutions. The High Court observed:
“….It is true that it is left to the discretion of the Court
while ordering the sentence to run either consecutively or
concurrently. However, such discretion has to be exercised
judicially, having regard to the facts and circumstances of the
case. As observed by the Supreme Court, the rule with regard to
sentencing concurrently will have no application, if the
transaction relating to offence is not the same and the facts
constituting the two offences are quite different. The
respondent-accused is found to be guilty for the offence
punishable under Section 376 of the Indian Penal Code in two
different and distinct occurrences on two different dates, and
the transactions relating to the commission of the offences have
no nexus with each other…
12. There are also cases where the High Courts have depending upon
whether facts forming the basis of prosecution arise out of a single
transaction or transactions that are akin to each other directed that the
sentences awarded should run concurrently. As for instance the High Court
of Allahabad has in Mulaim Singh v. State 1974 Crl. L.J. 1397 directed the
sentence to run concurrently since the nature of the offence and the
transactions thereto were akin to each other. Suffice it to say that the
discretion vested in the Court for a direction in terms of Section 427 can
and ought to be exercised having regard to the nature of the offence
committed and the facts situation, in which the question arises.
13. We may at this stage refer to the decision of this Court in Mohd.
Akhtar Hussain v. Assistant Collector of Customs (1988) 4 SCC 183 in which
this Court recognised the basic rule of convictions arising out of a single
transaction justifying concurrent running of the sentences. The following
passage is in this regard apposite:
“The basic rule of thumb over the years has been the so called
single transaction rule for concurrent sentences. If a given
transaction constitutes two offences under two enactments
generally, it is wrong to have consecutive sentences. It is
proper and legitimate to have concurrent sentences. But this
rule has no application if the transaction relating to offences
is not the same or the facts constituting the two offences are
quite different.”

14. In. Madan Lal’s case (supra) this Court relied upon the decision in
Akhtar Hussain’s case (supra) and affirmed the direction of the High Court
for the sentences to run concurrently. That too was a case under Section
138 of the Negotiable Instruments Act. The State was aggrieved of the
direction that the sentences shall run concurrently and had appealed to
this Court against the same. This Court, however, declined interference
with the order passed by the High Court and upheld the direction issued by
the High Court.
15. In conclusion, we may say that the legal position favours exercise of
discretion to the benefit of the prisoner in cases where the prosecution is
based on a single transaction no matter different complaints in relation
thereto may have been filed as is the position in cases involving dishonour
of cheques issued by the borrower towards repayment of a loan to the
creditor.
16. Applying the above test to the 15 cases at hand we find that the
cases against the appellant fall in three distinct categories. The
transactions forming the basis of the prosecution relate to three different
corporate entities who had either entered into loan transactions with the
State Financial Corporation or taken some other financial benefit like
purchase of a cheque from the appellant that was on presentation
dishonoured. The 15 cases that have culminated in the conviction of the
appellant and the award of sentences of imprisonment and fine imposed upon
him may be categorised as under:
1) Cases in which complainant-Haryana State Financial Corporation
advanced a loan/banking facility to M/s Arawali Tubes Ltd. acting
through the appellant as its Director viz. No.269-II/97; No.549-II/97;
No.393-II/97; No.371-II/97; No.372-II/97; No.373-II/97; No.877-II/96;
No.880-II/96; No.878-II/96; No.876-II/96; No.879-II/96; No.485-II/96
2) Cases in which complainant-Haryana State Financial Corporation
advanced a loan/banking facility to the appellant to M/s Arawali
Alloys Ltd. acting through the appellant as its Director viz. No.156-
II/1997 and No.396-II/1998

3) Criminal complaint No. 331-II/97 in which complainant- State Bank of
Patiala purchased/discounted the cheque offered by Sabhyata Plastics
acting through the appellant as its Director.
17. Applying the principle of single transaction referred to above to the
above fact situations we are of the view that each one of the loan
transactions/financial arrangements was a separate and distinct transaction
between the complainant on the one hand and the borrowing company/appellant
on the other. If different cheques which are subsequently dishonoured on
presentation, are issued by the borrowing company acting through the
appellant, the same could be said to be arising out of a single loan
transaction so as to justify a direction for concurrent running of the
sentences awarded in relation to dishonour of cheques relevant to each such
transaction. That being so, the substantive sentence awarded
to the appellant in each case relevant to the transactions with each
company referred to above ought to run concurrently. We, however, see no
reason to extend that concession to transactions in which the borrowing
company is different no matter the appellant before us is the
promoter/Director of the said other companies also. Similarly we see no
reason to direct running of the sentence concurrently in the case filed by
the State Bank of Patiala against M/s Sabhyata Plastics and M/s Rahul
Plastics which transaction is also independent of any loan or financial
assistance between the State Financial Corporation and the borrowing
companies. We make it clear that the direction regarding concurrent running
of sentence shall be limited to the substantive sentence only. The sentence
which the appellant has been directed to undergo in default of payment of
fine/compensation shall not be affected by this direction. We do so
because the provisions of Section 427 of the Cr.P.C. do not, in our
opinion, permit a direction for the concurrent running of the substantive
sentences with sentences awarded in default of payment of
fine/compensation.

18. In the result, these appeals succeed but only in part and to the
following extent:
1) Substantive sentences awarded to the appellant by the Courts of Judicial
Magistrate, First Class, Hissar and Additional Chief Judicial Magistrate,
Hissar, in Criminal complaint cases No.269-II/97; No.549-II/97; No.393-
II/97; No.371-II/97; No.372-II/97; No.373-II/97; No.877-II/96; No.880-
II/96; No.878-II/96; No.876-II/96; No.879-II/96; No.485-II/96 relevant to
the loan transaction between Haryana Financial Corporation and Arawali
Tubes shall run concurrently.
2) Substantive sentences awarded to the appellant by the Court of Judicial
Magistrate, First Class, Hissar in Criminal complaint cases No.156-
II/1997 and No.396-II/1998 between Haryana Financial Corporation and
Arawali Alloys relevant to the transactions shall also run concurrently;
3) Substantive sentences inter se by the Court of Judicial Magistrate,
First Class, Hissar in the above two categories and that awarded in
complaint case No.331-II/97 shall run consecutively in terms of Section
427 of the Code of Criminal Procedure.
4) No costs.
……………………………J.
(T.S. THAKUR)

……………………………J.
(GYAN SUDHA MISRA)
New Delhi
July 5, 2013

 

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