SHYAM PAL Vs DAYAWATI BESOYA
Bench: DIPAK MISRA,AMITAVA ROY
Case number: Crl.A. No.-000988-000989 / 2016
Diary number: 14629 / 2016
Advocates: PRIYA PURI Vs
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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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