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REPORTABLE            IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION

        CRIMINAL APPEAL NOS.  988-989   OF 2016           [ARISING OUT OF S.L.P. (CRL.) NOS.6226-27 OF 2016)

SHYAM PAL                   .…APPELLANT VERSUS

DAYAWATI BESOYA & ANR.             ....RESPONDENTS

J U D G M E N T  

AMITAVA ROY, J.

The  instant  appeals  call  in  question  the  judgment  and

order dated 08.02.2016 passed by the High Court of  Delhi in

Criminal  Revision  Petition  No.403  of  2015,  sustaining  the

conviction of the appellant under Section 138 of the Negotiable

Instruments  Act,  1988  (hereafter  referred  to  as  the  “Act”)  as

recorded  by  the  Trial  Court  and  affirmed  in  appeal  by  the

District and Sessions Judge, Saket Court, New Delhi. The High

Court  while  maintaining  the  substantive  sentence  of  simple

imprisonment  for  10  months  and  fine  of  Rs.6,50,000/-  as

compensation  as  awarded  by  the  Trial  Court,  however  has

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reduced  the  default  sentence  from  six  months  simple

imprisonment  to  that  of  three  months.  The  order  dated

22.02.2016 rendered by the High Court declining the prayer for

modification of the above decision by directing the release of the

appellant, he having already served the sentence in all being in

custody  from  25.02.2015  has  been  assailed  in  the  present

appeals as well.

(2) We have heard Mr. Jayant K. Sud, learned counsel for the

appellant. None appeared for the respondents.

(3) The recorded facts divulge that the respondent No.1 had

filed two complaints, both under Section 138 of the Act against

the appellant in the Court of the Chief Metropolitan Magistrate

(South  East),  Patiala  House  Court,  New  Delhi  which  were

registered  as  C.C.  No.407  of  2011  and  C.C.  No.430  of  2011

alleging  that  on  31.07.2008  the  appellant  had  visited  the

residence of  the complainant and had requested for a loan of

Rs.5  lacs  to  meet  his  personal  needs  which  he  promised  to

return  on  13.11.2009.  On  this,  as  the  complaint  reads,  the

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respondent/complainant  reminded  him  that  she  had  already

lent a sum of Rs.5 lacs to him on 01.05.2008 and that she had

no funds to accede to his request for the second installment.

However,  having  regard  to  the  friendly  relations,  the

respondent/complainant on the persuasion of the appellant, did

advance a further amount of Rs.5 lacs to him as loan on that

date, by somehow arranging the same.

(4) According  to  the  respondent/complainant  in  connection

with the loans advanced, the appellant had issued two cheques

bearing Nos.97357 and 97358 for Rs.5 lacs each and drawn on

State  Bank of  Bikaner  and Jaipur,  Arnar  Colony,  New Delhi.

Both  these  cheques  when presented  at  the  appropriate  time,

were  dishonored  with  the  remarks  “funds  insufficient”.

Thereafter, the respondent/complainant issued legal notices and

as the same though served, remained unresponded, complaints

were filed.

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(5) As eventually the arguments in the present appeals have

centered around the sentence alone, we do not wish to burden

the present rendering with avoidable facts.     

(6) The Trial Court after a full dress adjudication, in the two

proceedings,  returned  a  finding  that  the  signatures  on  the

cheques were not  disputed by the appellant  and indeed were

issued  in  discharge  of  legally  recoverable  debts  subsisting

against  him  and  acting  on  the  presumption  available  under

Section  139  of  the  Act  convicted  him  of  the  offence  under

Section 138 of the Act. Consequently, he was 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.  This  was  by

judgments and orders dated 21.01.2014.

(7) The appellant having unsuccessfully appealed against his

conviction  and  sentence  before  District  and  Sessions  Judge

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(South  East),  Saket  Court,  New  Delhi,  in  both  the  cases,

approached the High Court in revision.

(8) To reiterate, the appellant preferred two revision petitions

before the High Court corresponding to his convictions in the

two complaint cases, being Criminal Revision Petition No.403 of

2015 (pertaining to the present appeals) and Criminal Revision

Petition No.404 of 2015. By separate orders dated 08.02.2016,

both these revision petitions were disposed of by maintaining the

conviction  but  moderating  the  default  sentence  from  simple

imprisonment of six months to that of three months. In both the

petitions as well, by separate orders dated 22.02.2016, 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. It is a matter of

record,  that  the special  leave petition filed against  the orders

dated 08.02.2016 and 22.02.2016 rendered by the High Court in

Criminal  Revision  Petition  No.404  of  2015  has  since  been

dismissed  by  this  Court  and,  therefore,  the  conviction  and

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sentence  awarded  to  the  appellant  in  the  corresponding

complaint case has attained finality.

(9) The learned counsel  for  the appellant has urged that as

both the complaints filed by the respondents have 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 has been submitted that the

appellant  is  in  custody  since  25.02.2015  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. That the appellant comes 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,  has  been  emphasized.  No

argument, noticeably has been advanced, as abandoned before

the High Court as well, impeaching the conviction.

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(10) We have extended our required consideration to few facts

and the submissions made.

The materials on record leave no manner of doubt that the

complaints filed by the respondents stem from two identical

transactions  between  the  same  parties  whereunder  the

respondent  had  advanced  loan  of  Rs.5  lacs  each  to  the

appellant on two different dates against which the latter had

issued cheques to discharge his debt and that the cheques

had  been  dishonored.  The  facts  pleaded  and  proved  do

unassailably demonstrate 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  Act,  the  same sentences  as  well  have

been awarded. There is thus 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

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one  transaction.  This  deduction understandably  is  in  the

singular facts of the case.

(11) The  Custody  Certificate  dated  06.05.2016  issued  by  the

Deputy Superintendent of Prison, Central Jail No.5, Tihar, New

Delhi  appended  to  the  appeal  petition  mentions  that  the

appellant on being convicted in the complaint cases referred to

hereinabove  under  Section  138 of  the  Act  is  serving  out  the

sentences  awarded  and  that  the  period  of  his  custody  is  as

hereunder:

(1) 25.02.2015  to  13.12.2015  (As  convict  in  CC

No.430/11)

(2) 14.12.2015 till date i.e. 06.05.2016 (As convict in CC

No.407/11)

That meanwhile the appellant had been on interim bail for

10 days from 05.10.2015 to 14.10.2015 as granted by the

High Court has also been stated.

(12) 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

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Code of Criminal Procedure, 1973 (for short “Code”) in following

terms:

“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  imprisonment  for  a  term  or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.”

(13) Though this provision has fallen for scrutiny of this Court

umpteen  times,  we  can  profitably  refer  to  one  of  the  recent

pronouncements  in  V.K.  Bansal  vs.  State  of  Haryana and

Another  (2013) 7 SCC 211 where it was held that though it is

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manifest from Section 427(1), that the Court has the power and

discretion to issue a direction that a subsequent sentence shall

run concurrently with the previous sentences, the very nature of

the  power  so  conferred,  predicates  that  the  discretion,  would

have to be exercised along judicial lines or not in a mechanical

or pedantic manner. It was 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.

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(14) The imperative essentiality of  a single transaction as the

decisive  factor  to  enable  the  Court  to  direct  the  subsequent

sentence to run concurrently with the previous one was thus

underscored.  It  was expounded as  well  that  the  direction for

concurrent  running  of  sentence  would  be  limited  to  the

substantive sentence alone.

(15) In  a  more  recent  decision  of  this  Court  in  Benson  vs.

State  of  Kerala –  Criminal  Appeal  No.958  of  2016  (since

disposed  of   on  03.10.2016)  and  the  accompanying  appeals,

arising from the conviction of the appellant from his prosecution

on  the  offences  proved,  this  Court  in  the  singular  facts  as

involved and having regard to the duration of his incarceration

and the remission earned by him, extended the benefit of such

discretion and directed that the sentences awarded to him in

those cases would run concurrently. It was noticeably recorded

that  the  offences  in  the  cases  under  scrutiny  had  been

committed on the same day. The benefit of the discretion was

accorded  to  the  appellant  therein  referring  as  well  to  the

observation in V.K. Bansal (supra) that it is difficult to lay down

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any straight jacket approach in the matter and that a direction

that the subsequent sentence would run concurrently or  not,

would essentially depend on the nature of the offence or offences

and the overall fact situation. Understandably, the appellant was

required  to  serve  the  default  sentence  as  awarded  with  the

direction that if the fine imposed had not been deposited, the

default sentence or sentences would run consecutively.

(16) Reverting to the facts as obtained in the present appeal, we

are of the comprehension, on an appreciation thereof as well as

the duration of the appellant's custody, as is evidenced by the

certificate  to  that  effect,  that  the  appellant  is  entitled  to  the

benefit of the discretion contained in Section 427 of the Code. In

arriving at this conclusion we have, as required, reflected on the

nature  of  the  transactions  between  the  parties  thereto,  the

offences  involved,  the  sentences  awarded  and  the  period  of

detention of the appellant as on date.

(17) It  is  thus  ordered  that  the  substantive  sentences  of  10

months simple imprisonment awarded to the appellant in the

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two  complaint  cases  referred  to  hereinabove  would  run

concurrently. Needless to say, the appellant would have to serve

the default  sentences,  if  the fine by way of  compensation,  as

imposed,  has  not  been  paid  by  him.  The  appeals  are  thus

allowed to  this  extent.  The appellant  would be  entitled  to  all

consequential reliefs with regard to his release from custody as

available in law based on this determination.

          …...........................................J.  (DIPAK MISRA)

         …...........................................J. (AMITAVA ROY)

NEW DELHI; OCTOBER 28, 2016.

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