TaxTMI 
TaxTMI 
2016 (12) TMI 1093
X X X X Extracts X X X X
X X X X Extracts X X X X
....gment and order dated 03.11.2015 passed by the Additional Sessions Judge, Patiala House Courts in Crl Apl No 35/2014 thereby rejecting the criminal appeal against the judgment and order on sentence dated 30.05.2014 passed by the Civil Judge-1/MM, New Delhi District in the following 18 complaint cases, i.e., (1) CC No. 894/2011, (2) CC No. 909/2011, (3) CC No. 899/2011, (4) CC No. 903/2011, (5) CC No. 910/2011, (6) CC No. 911/2011, (7) CC No. 906/2011, (8) CC No. 907/2011, (9) CC No. 898/2011, (10) CC No. 905/2011, (11) CC No. 904/2011, (12) CC No. 157/2013, (13) CC No. 902/2011, (14) CC No. 912/2011, (15) CC No. 901/2011, (16) CC No. 900/2011, (17) CC No. 908/2011 and (18) CC No. 897/2011, wherein the revisionists in the above mentioned complaint cases were sentenced to undergo simple imprisonment for one year for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and were liable to pay a fine of Rs. 51 lakhs as compensation to the respondent/complainant and in default of payment the revisionist no.2 Mr. Satpal Jain was directed to undergo further simple imprisonment for a period of six months. 2. The brief facts stated are that the respondent- PEC ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nists which revoked its charge and released the same from its pledge. Thereby, the respondent/complainant received physical delivery of the said goods. 6. It is stated in the complaint that the respondent/complainant had made payments to the bankers/foreign suppliers of the said goods on 10.02.2009 and 22.05.2009. Several letters were written to the revisionists for the payment of the outstanding amounts but the revisionists failed to make any payment. In the last letter dated 11.03.2010, the respondent/complainant requested the revisionists to make payment of its outstanding amounts with up to date interest amounting to Rs. 9,89,44,149/- by 15.03.2010. The revisionists in response to said letter wrote a correspondence dated 24.03.2010 admitting their liability but failed to make any payments. As on 31. 03.2010, the total outstanding liability of the revisionists was of Rs. 9,94,98,634/- against the said imports. The respondent/complainant under the above circumstances presented the cheques issued by the revisionists for collection on its bank but the same were returned unpaid with the remarks "Exceeds Arrangements" as per the return memo. Thereafter, the respondent/complainant ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3.2010 26.04.2010 sent on 27/28.04.2010 18 897/2011 274786 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2 010 7. The learned Metropolitan Magistrate after looking into the facts of the complaint cases and perusal of the records convicted the present revisionists and acquitted the other two accused, i.e., Ms. Shakuntala Mittal and Mr. Ajay Jain (Directors of M/s Shree Sainath Wires Pvt.Ltd.). Vide judgment and order on sentence dated 30.05.2014 the learned Metropolitan Magistrate sentenced the present revisionists to undergo simple imprisonment for one year for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and directed them to pay a fine of Rs. 51 lakhs as compensation to the respondent/complainant and in default of payment the revisionist no.2 Mr. Satpal Jain was directed to undergo further simple imprisonment for a period of six months in each complaint cases. 8. Thereafter the revisionists aggrieved from the judgment and order on sentence dated 30.05.2014 filed 18 appeals before the learned Additional Sessions Judge and the learned Additional Sessions Judge dismis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wrong while passing Rs. 51 lakhs as compensation in each complaint case and further subjected the revisionist to default sentence in case of non-payment of the compensation. The compensation does not keep the head of default. However, according to the learned senior counsel, the Hon'ble Supreme Court in the case of R. Mohan vs. A.K. Vijaya Kumar and A.K. Vijaya Kumar vs. R. Mohan, reported at 2012 (8) SCC 721 on this point has allowed the default sentence in case of failure/ non-payment of compensation amount by the accused person. She has further drawn the attention of this Court to Section 219 of Cr.P.C. and contends that while putting the criminal law into motion the liberty of the accused should be kept in mind. According to her, under Section 219 of Cr.P.C., three offences of the same kind can be charged together in one year indicating that the order on sentence should be concurrent and not separate in each complaint case. However, in the instant revision petitions, there are 18 convictions and the cheques issued were of the same date and pertaining to the same transaction and this ipso facto is sufficient to reach to the conclusion that the offence is one and the same and the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a senior citizen and the learned Metropolitan Magistrate could have given a lesser sentence. 15. The learned senior counsel has drawn the attention of this Court towards Section 30 and Section 31 of Cr.P.C. which deals with sentence of imprisonment in default of fine and sentence in cases of conviction of several offences at one trial. She has further submitted that the order of sentence is per se illegal and liable to be set aside. The learned senior counsel has further brought the attention of this court to the order passed in this case on 17.03.2016. 16. The learned senior counsel has given the following options to be considered by this court: a) Substantive sentence should be made concurrent. b) Default sentence be given keeping in mind of Section 219 Cr.P.C. wherein it comes to 18 cases will come to 6 cases and default sentence will come to 36 months. It is further pleaded by the learned senior counsel for the revisionists that considering the age of the revisionist, the default sentence should be further reduced to satisfy the ends of justice and not more than 36 months. 17. On the other hand, the learned counsel for the respondent/complainant has submitted th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860 ) or of any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860 ) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence." 23. In the aforesaid revision petitions the cheques in question were issued on 31.03.2010 by the revisionists to meet the outstanding liability amounting to Rs. 9,94,98,634/- qua against the respondent company which is a government company. All the cheques issued were of Rs. 50 lakhs each. The said cheques on presentation by the respondent were dishonoured with a remark 'exceeds arrangements'. In C.C.N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the same or the facts constituting the two offences are quite different. V.K. Bansal v. State of Haryana and Ors. etc. etc. reported in (2013) 7 SCC 211 17. 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 Code of Criminal Procedure 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." The Court below went wrong while awarding substantive sentence to run consecutively rather than to award the sentence concurrently as the cheques issued by the revisionists were to meet their outstanding liability of Rs. 9.94,98.634/- qua against the respondent/Govt. company on 31.03.2010 which forms one single transaction. 26. So far the default sentences are concerned Section 30 of The Code Of Criminal Procedure, 1973 is reproduced as under: "30. Sentence of imprisonment in default of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." 28. The Court below while awarding the sentence and fine as compensation under Section 357(3) of the Cr.P.C. could have increased the fine amount twice the cheque amount under Section 138 of the N.I. Ac....