TaxTMI 
TaxTMI 
2022 (7) TMI 412
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.... revision petition is being referred to as under: CRR No. Complaint No. / Title / Offence / Cheque No. and date/Amount Judgment of Trial Court and Sentence Judgment of Appellate Court and sentence Actual Sentence undergone CRR-3403-2019 (O&M) COMA 18/2 dated 10.03.2014 Parveen Kumar versus Yogesh Kumar Section 138 of Negotiable Instruments Act Cheque No.000310 dated 01.02.2014 for amount of Rs.9,00,000/- Date of decision: 12.06.2017 Rigorous imprisonment for 01 (one) year. Criminal Appeal No.47, date of decision dated 01.11.2019 in CRR No.673 of 2017 Compensation to the tune of Rs.9,00,000/- to the complainant. Rigorous imprisonment for 01 (one) year. 01 year and 08 months CRR-3406-2019 (O&M) COMA 15 dated 01.03.2014 Parveen Kumar versus Yogesh Kumar Under Section 138 of Negotiable Instruments Act Cheque No.000308 dated 18.01.2014 for amount of Rs.7,00,000/- Date of decision 12.06.2017 Rigorous imprisonment for 01 (one) year. Criminal Appeal No.45, date of decision dated 01.11.2019 in CRR No.676 of 2017 Compensation to the tune of Rs.7,00,000/- to the complainant. Rigorous imprisonment for 01 (one) year. ----- CRR-3411-2019&....
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....irst Class, Jagraon vide judgment dated 12.06.2017. Aggrieved thereof, an appeal was preferred by the petitioner-accused before the Court of Additional Sessions Judge, Ludhiana, however, the said appeal was also dismissed vide judgment dated 01.11.2019. CRR-3411-2019 (O&M) 5. The case of the respondent-complainant in the present complaint was to the effect that the petitioner-accused had borrowed a sum of Rs, 9,00,000/- in cash and that towards discharge of his liability/debt, the cheque No. 000312 dated 11.02.2014 drawn on HDFC Bank, Jagraon had been issued. However, the same was dishonoured with the remarks "Stop Payment". It is contended that the petitioner-accused was the proprietor of M/s Sukhdev Money Changer, Anarkali Bazar, Ishar Chowk, Near Gurudwara Atma Singh, Jagraon, Tehsil Jagraon, District Ludhiana. The petitioner-accused was convicted vide judgment dated 12.06.2017 passed by the Judicial Magistrate First Class, Jagraon and appeal preferred by the petitioner was dismissed by Additional Sessions Judge, Ludhiana vide judgment dated 01.11.2019. CRR-3415-2019 (O&M) 6. The case of the respondent- complainant in the present complaint is to the effect that the p....
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....f time. Rather, the consolidated amount of Rs. 34 lakhs found to be due against the petitioner was discharged by means of issuance of 04 different cheques of separate denominations. 03 cheques were issued for a sum of Rs. 9,00,000/- each while one cheque was issued for a sum of Rs. 7,00,000/-. He thus contends that the liability having been crystallized, the issuance of the cheques would invariably form a part of the same or single comprehensive transaction and should not be regarded as commission of separate and distinct offences. Resultantly, the sentence ought to be ordered to run concurrently. He had placed reliance on the judgment of Hon'ble Supreme Court of India in the matter of "V.K. Bansal versus State of Haryana and another" reported as (2013) 7 Supreme Court Cases 211. 10. To the contrary, counsel for respondent has opposed the prayer made on behalf of the petitioner and has placed reliance on the judgment of the Hon'ble Supreme Court in the matter of "Nagpal Traders versus Davinder Singh" reported as 2014 (4) R.C.R (Criminal) 96 to contend that no undue leniency should be shown to any accused in awarding the sentence. It was pointed out that in the said case, the Hig....
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.... liable to undergo a subsequent imprisonment on conviction, the Court may direct the sentence to run concurrently with such previous sentence, or the sentence shall start after expiration of the first sentence. The question which thus arises for consideration is as to under what justifying circumstances should the Court issue a direction for the sentences to run concurrently. PRECEDENT JUDGMENTS ON CONCURRENT RUNNING OF SENTENCES 14. In this regard, it would be essential to advert to precedents on the subject. The said aspect was examined by the Hon'ble Supreme Court of India in the matter of "Mohd. Akhtar Hussain versus Asstt. Collector, Customs (Prevention), Ahmedabad in Criminal Appeal No. 467 of 1988" The Hon'ble Supreme Court, while dealing with the Section 427 held as under: "10. The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive ? 11. The basic rule of thumb over the years has been the so called single transacti....
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.... 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. 16. 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. Similarly, in the matter of "Sunil Kumar @ Sudhir Kumar and another versus the State of Uttar Pradesh" bearing Criminal Appeal No. 526 of 2021 dated 25.05.2021, the Hon'ble Supreme Court held as under: "7.1. The learned counsel has contended, while relying on the decisions in Nagaraja Rao v. Central Bureau of Investigation: (2015) 4 SCC 302 and Gagan Kumar v. State of Punjab: (2019) 5 SCC 154, that it is obligatory for the Court awarding punishments to specify whether they shall be running concurrently or consecutively; and the omission on the part of....
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.... in any particular case, relates to the facts and circumstances pertaining to that case and the appellants cannot claim any parity for concurrent running of sentences with reference to any other decided case, even if relating to the offences of similar nature. The learned AAG would argue that in the present case, looking to the nature and gravity of offences, the Trial Court has exercised its discretion in not directing concurrent running of sentences, which only means that the sentences are to run consecutively; and that an omission on the part of the Trial Court in not specifying the order of running cannot mean that the sentences are to run concurrently Xx xx xx xx xx xx Xx xx xx xx xx xx 10. The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) CrPC. The contours of these provisions have been succinctly delineated and explained by this Court in the case of O.M. Cherian (supra) in the following terms: - "20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down....
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....multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the Court may direct. 11. For what has been provided in Section 31(1) CrPC read with the expositions of this Court, it follows that the Court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao (supra), this Court expounded on this legal obligation upon the Court of first instance in the following terms:- 11. The expressions "concurrently" and "consecutively" mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under IPC or/and of an offence punishable under any other Special Act arising out of one trial or mo....
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....r such trial for multiple offences, if the accused is convicted and awarded different punishments, concurrent running thereof may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related with 'single transaction' cannot be imported for dealing with the question at hand. 14.1. In the case of Mohan Baitha (supra), this Court observed that the expression 'same transaction', from its very nature, is incapable of an exact definition and it is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. The question involved in that case did not relate to sentence but to the inquiry and trial of different offences pertaining to Sections 304-B, 498-A, 120-B and 406 IPC and territorial jurisdiction of the Magistrate in Bihar when the alleged incident constituting one of the offences, i.e., under Section 304-B IPC, had taken place in the State of Uttar Pradesh. Of course, in the case of Mohd. Akhtar Hussain (supra), this Court indicated that if a transaction constitutes two offences under two enactments, generally it is wrong ....
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....peal No. 529 of 2004 decided on 05.03.2009, the accused was convicted in 03 complaints filed under Section 138 of Negotiable Instruments Act, 1881. The High Court ordered the sentence to run concurrently in all the 03 cases. The said order of the High Court was upheld by the 3-Judge Bench of the Supreme Court. 19. At the same time, it would be appropriate to make a reference to the judgment cited by the respondent titled as "Nagpal Traders versus Davinder Singh" reported as 2014 (4) R.C.R. (Criminal) 96. The same reads as follows :- "9. We must first refer to the conduct of the Respondent. During the course of hearing of these appeals, we gave opportunity to the Respondent to pay the cheque amounts or at least to pay some amount to the complainant-firm because before the High Court the Respondent did not challenge his conviction. He only prayed for concurrency. Thus, he admitted his liability. We requested the Respondents counsel to contact the Respondent and communicate his response to us. The appeals were adjourned for that purpose. Today counsel for the Respondent made a statement that the Respondent is not in a position to pay any amount. The Respondent has not even....
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.... of Jeetu @ Jitendra where this Court has while considering as to how the appeal should be disposed of by the appellate court when there is no challenge to conviction observed that it is the obligation of the Court to decide the appeal on merits and not accept the concession and proceed to deal with the sentence, for the said mode and method defeats the fundamental purpose of the justice delivery system. This Court further noted that there are many cases where the High Courts after recording the non-challenge to the conviction, have proceeded to dwell upon the proportionality of the quantum of sentence. It was observed that such a course is impermissible in law and should not be resorted to. We respectfully agree with this view of this Court. We are dealing with one of such cases. In our opinion, the High Court should not have shown leniency to the Respondent. We will have to therefore rectify the error committed by the High Court. 20. However, a full Bench of this Court in the matter of titled as "Jang Singh versus State of Punjab" reported as 2008 (1) R.C.R. (Criminal) 323 had held that if an accused is a habitual offender and is found guilty on various counts and is suspected....
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....sed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Criminal Procedure Code, is that, a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Such direction to make the sentences to run concurrently, as per various decisions noted above, can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well. However, if the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Sections 482/427 Criminal Procedure Code The view taken by one set of the ....
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....n concurrently and thereafter, to ascertain whether the said parameters are satisfied in the facts of the instant case. 22. The same would require the Court to examine various other provisions enshrined in the Code of Criminal Procedure. It would thus also be essential to refer to Section 31, Section 219, Section 220 and Section 223 of the Code of Criminal Procedure, 1973. The same are extracted herein below: Section 31 in The Code Of Criminal Procedure, 1973 "31. Sentences in cases of conviction of several offences at one trial. (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for....
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....ion of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts." Section 223 in The Code Of Criminal Procedure, 1973 223. What persons may be charged jointly. The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course same transaction; (b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) person accused of more than one offence of the same kind, within the meaning ....
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...., more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. Section 223 of the Cr.P.C. stipulates various persons who can be charged and tried together. Section 427 of the Cr.P.C. thereafter contemplates a situation where the accused is convicted and sentenced for offences under separate trials and that subsequent sentences can be ordered to run concurrently with the previous sentence. The aforesaid scheme shows that the underlying legislative intent was to extend some benefit to an accused who is being tried for the commission of offence. While Section 31 Cr.P.C. dealt with initial stage where a person has committed several offences at one trial, Section 219 Cr.P.C. sought to extend the benefit by trying different offences for which a person has been tried separately, but if the same are alleged to have taken place within a period of one year, the accused may be charged and tried together at one trial; Section 220 Cr.P.C. talks of a situation where a person commits multiple offences in one series of acts that are connected together to form part of the same transaction to be charged and tried at one trial for eve....
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....ransaction. The first element to establish, therefore, is a "series of acts", which would necessarily imply the acts being "connected together", but this will not be enough; it will have to be shown further that the acts "from the same transaction". Mere sequence in time may establish the first element, but no necessarily the other. The expression "so "connected together as to form the same transaction" has purposely, and, I may add, wisely, been left undefined, but the words must be given a reasonable and rational meaning, and cannot be stretched to include a series of acts which have no relation to each other as cause and effect or as principal and subsidiary, or which are not shown to follow, the one from the other, as a necessary or natural sequel or concomitant. As I read s. 235(1), there must be one continuous thread of a common purpose running through the acts to support a joinder of charges in respect thereof. Mere difference in time or place between the commission of one offence and of another will not necessarily import want of such continuity: they may yet be linked together by a community or continuity of purpose, and thus form the same transaction. 26. The ....
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....nterpretation to be imbibed in Section 31 as well as Section 427 of the Cr.P.C. 28. Therefore, even though single transaction has not been defined anywhere in the code, however, it can safely be concluded that in order to ascertain whether a transaction can be regarded as same/single transaction, it would be essential for a Court to examine the following aspects : i) The proximity of time and place; or ii) Unity of purpose and design; or iii) Continuity of action in respect of series of acts; or iv) Acts /series of acts are connected together to form same transaction; or v) Where the parties are same and the case is tried together by singularity/commonness of the evidence; or vi) Where the separate proceedings initiate out of one consolidated Act reflecting intent of the parties to fulfill the said purpose/object by means of separate transactions; or vii) Where the nature of the offence and the transactions thereto are akin to each other; viii) Where the offences are intertwined as to form part of the same transaction. The aforesaid circumstances are singularly as well as cumulatively reflective of what m....
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....to be discharged by making a reference to the ledger and cash books for the same year. The relevant extract of the judgment of the trial Court dealing with the said evidence in each of the cases is tabulated as under:- CRR-3403-2019 To discharge onus, complainant Parveen Kumar himself stepped into the witness box as CW1 and in his examination in chief by way of affidavit Ex.CA, has deposed on the lines of version of the complaint and further he proved on record various documents i.e. Original cheque bearing No. 000310 Ex.C1, bank memo as Ex.C2 , notice in envelope received back Ex.C3, copy of legal notice as Ex.C4, postal receipt as Ex.C5, certified copy of day book for the year 2013-14 Ex.C6, copy of cash book for the year 2013-14 Ex.C7, copy of ledger for the year 2013-14 Ex.C8, duly certified copy of the return for the assessment year 2014-15 Ex.C9 and thereafter he closed the after notice evidence. CRR-3406-2019 To discharge onus, complainant Parveen Kumar himself stepped into the witness box as CW1 and in his examination in chief by way of affidavit Ex.CA, has deposed on the lines of version of the complaint and further he proved on record various documents i.e. Or....
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....nsel for the petitioner that upon the settlement of the accounts amongst the parties, a total liability of Rs.34,00,000/- was determined and that cheques in question had been against discharge of a compounded crystallized liability, to be discharged by separate cheques spread over a period of time instead of issuing a single cheque towards discharge of the total liability. iv) All the complaints have been decided by the same Illaqa Magistrate by the judgment of one single date. It thus establishes that all the cases were also being tried together even though separate complaints may have been filed. v). That all the appeals were also dismissed by Additional Sessions Judge, Ludhiana on the same date. Hence, apart from assigning separate complaint or appeal number, there is no segregation of the cases and they have for all purposes been tried together. vi). That there is a close proximity with respect to the purpose for issuance of the cheque, the time span within which the cheques have been issued and submitted for presentation and the period of institution of the complaints as well. vii) The purpose and object of the multiple cheques in such quick....
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....the matter of "Shyam Pal versus Dayawati Besoya and another reported as (2016) 10 SCC 761, while dealing with the scope of Section 427 Cr.P.C., in a matter relating to proceedings under Section 138 of the Negotiable Instruments Act, 1881 that the power to direct concurrent running of sentence is discretionary. The accused in the said case was convicted in respect of two cases arising out of successive transactions in a series between the same parties and tried together. The relevant paragraphs are extracted as under:- "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 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 t....
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....he appellant in the 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. 35. Thus, while applying the aforesaid principles of law, it would also be essential to balance the principle of sentencing in a manner that would restore faith of people in the system of administration of criminal justice and that the judicial process is not seen siding with an accused. The sentence imposed must not seem to be a flea-bite sentence, a phrase aptly used by the Hon'ble Supreme Court in the matter of "Suganthi Suresh Kumar versus Jagdeeshan" reported as (2002) 2 Supreme Court Cases 420. The sentencing must not only show reformatory and reprimanding aspect, but must also take the retributive aspect into consideration. Where the violator of law has displayed lack of bona fide and his culpability stands duly established, the Court has to keep in....
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....ective parties were specifically confronted with the said aspect and were called upon to respond to the same. A perusal of Section 401(2) Cr.P.C. empowers the High Court to pass an order to the prejudice of an accused after he has been granted opportunity of being heard either personally or through pleader in his defence. The prohibition imposed in exercise of the revision powers is only under Section 401 (3) Cr.P.C., that a finding of acquittal cannot be converted into one of conviction. 39. Learned counsel appearing on behalf of the parties have not disputed that such a power is vested in the High Court to modify or alter a judgment when the High Court is seized of its revisional jurisdiction provided an opportunity of hearing is granted to the party to whose prejudice an order is to be passed. Such opportunity was duly extended to the counsel for the parties. 40. Having held that the benefit under Section 427 of the Cr.P.C. is available in favour of the petitioner-accused as the transactions in question appear to be part of a single transaction and other factors noticed in the preceding paragraph and also the principles culled out for determining of which aspects are to be....
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....of offence out of the sentence of fine imposed on the accused. Section 357(3) is relevant. It reads thus : "357. Order to pay compensation. - (1) xxx xxx xxx (2) xxx xxx xxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced." Thus, if a fine is not a part of the order of sentence, the court may order the accused to pay compensation to the person who has suffered any loss or injury because of the act of the accused for which he is sentenced. 11. In Hari Singh v. Sukhbir Singh & Ors., 1988(2) RCR (Criminal) 394 : (1988)4 SCC 551, the accused were convicted and sentenced under Section 325 read with Section 149, Section 323 read with Section 149 and Section 148 of the Indian Penal Code. They were released on probation of good conduct. Each of them was ordered to pay compensation of Rs. 2,500/- to the injured. In default of payment of compensati....
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....n offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter : Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property ....
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.... of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence." 16. The above provisions were examined by this Court in Vijayan v. Sadanandan K. & Anr., 2009(2) RCR (Criminal) 969 : 2009(3) R.A.J. 525 : (2009)6 SCC 652 After quoting them, this Court rejected the submission that where there is default in payment of compensation ordered by the court, recourse can only be had to Section 421 of the Code because there is no provision enabling the court to award a default sentence. This Court observed that if such a view is taken, the very object of sub-section (3) of Section 357 would be frustrated and the relief contemplated therein would be rendered somewhat illusory. 17. We respectfully concur with this view. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999)7 SCC 510 while considering Section 357(3) of the Code this Court expressed that if the Judicial Magistrate of the First Class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum ....
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....l sentence in default of non-payment of compensation, the compensation would still be recoverable under Section 421 Cr.P.C. The relevant extract of the said judgment is reproduced hereinafter below: "2. The present appeals raise an interesting question as to whether when compensation is ordered as payable for an offence committed under Section 138 of the Negotiable Instruments Act, and in default thereof, a jail sentence is prescribed and undergone, is compensation still recoverable. 25. At this juncture, it is important to note that in Vijayan v. Sadanandan K., 2009(2) RCR (Criminal) 969 : (2009) 6 SCC 652 , this Court held : "29. To appreciate the said legal position, the provisions of Section 431 are set out hereinbelow: "431. Money ordered to be paid recoverable as fine. Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of ....
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.... only to an order for payment of expenses or compensation out of a fine, which would necessarily refer only to Section 357(1) and not 357(3). Despite this being so, so long as compensation has been directed to be paid, albeit under Section 357(3), Section 431, Section 70 I.P.C. and Section 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421(1). This would, however, be without the necessity for recording any special reasons. This is because Section 421(1) proviso contains the disjunctive "or" following the recommendation of the Law Commission, that the proviso to old Section 386(1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso to Section 421(1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 357(1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357(3). 28. As is wel....