TaxTMI 
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2022 (7) TMI 412
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....der: 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 (O&M) COMA 19/2 dated 10.03.2014 Parveen Kumar versus Yogesh Kuma....
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.... 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 petitioner-accused being the proprietor of M/s Sukhdev Money Changer Anarkali Bazar, Ishar Chowk, Near ....
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....d 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 High Court had directed the sentences to run concurrently and that the said judgment was set aside by the Hon'ble....
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....ence, 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 transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences....
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.... 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 the Trial Court and the High Court, to state the requisite specifications, cannot be allowed to operate detrimental to the interests of the accused-appellants. The learned counsel has contended that though as per t....
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....ar 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 any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the a....
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....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 more. It is for the reason that award of former enure to the benefit of the accused whereas award of latter is detrimental to the accused's interest. It is therefore, legally obligatory upon the court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentences a....
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....ase 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 to have consecutive sentences but this Court hastened to observe that such a rule shall have no application if the transaction relating to the offences is not the same or the facts concerning the two offences are quite different. Significantly, in that case, consecutive running of sentences awarded to accused-appellant, in two different cases pe....
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.... 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 cared to remain present in the court. We are unhappy with this approach of the Respondent. It is obvious that since the Respondent has undergone one years sentence, he is not willing to pay any amount to the complainant-firm. We shall, therefore, deal with the rival submissions. We find substance in the submission of learned Counsel that the High Court has shown undue leniency to the....
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....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 that he would be a menace to society if let loose, then the consecutive sentence should be awarded. An habitual offender should not be given the same treatment which may be extended to an offender who is not habitual. The relevant part of the said judgment is being extracted as under:- "12. This case basically related to the interpretation of subsection (2) of Section 427 Criminal Procedure Code and it w....
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....ly 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 High Courts that such an application can be entertained while exercising inherent powers under Section 482 Criminal Procedure Code would no more appear to be a good law in view of the decision of the Hon'ble Supreme Court in M.R. Kudva case (supra). We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertain....
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.... 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 the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that- (a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the pu....
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....cused 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 of section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last- named offence; (f) perso....
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....ence. 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 every such offence and Section 223 of the Cr.P.C. contemplates various persons who were accused of committing offences to be charged and tried together while Section 427 Cr.P.C. springs into action after different trials have already come to an end and separate sentences are being imposed. All the aforesaid provisions tend to accord a benefit of extending an indulgence to an accused for the sentences to run concurrently and that an accused ought not to be subjected to multiple trials, multiple convictions or multiple sentences. The aforesaid intent being reflected through more than one statutory provision ....
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.... 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 said test of single transaction was further examined in the judgment of "State of Andhra Pradesh versus Chimalapati Ganesh Rao and another" passed in Criminal Appeal No. 39 of 1961 decided on 23.04.1963. The relevant part reads thus as under:- "Xxx xxx xx xx xx xx xx xx What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which th....
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....y 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 may constitute a part of single or same transaction. 29. A perusal of the custody certificate shows that the petitioner has already undergone his complete sentence in the revision petition arising out of Appeal No. 47 dated 12.07.2017. Since concurrent running of sentences would only be considered when a person is undergoing actual imprisonment and keeping in view the fact that the petitioner has undergone his complete sentence in the Criminal Revision bearing No. 3403-2019 arising out of Criminal Appeal No. 47 dated 12.07.2017, the revision petition has been rendered infructuous as the petitioner is not undergoing any sentence in the said conviction. Therefore, no relief can be granted in the same.....
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....he 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. Original cheque bearing No. 000308 Ex.C1, bank memo as Ex.C2, copy of legal notice as Ex.C3, postal receipt as Ex.C4, reply Ex.C5, certified copy of day book for the year 2013-14 Ex.C6 to 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-3411-2019 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 Ex.C1, bank memo as Ex.C2, notice in evelope received back Ex.C3, copy of legal notice as Ex.C4, postal receipt as Ex.C5, certified....
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....mplaint 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 succession is apparently towards satisfying a consolidated liability determined amongst the parties and for issuance of cheques which have been seemingly issued on the same date as they are cheques in a series after leaving one cheque foil in between. The pattern would not support the probability as if the cheques in question would have been issued independently for separate and distinct transactions. 32. Now adverting to the judgment referred relied upon by the learned counsel for the respondent in the matter of Nagpal Traders (supra), it is submitted that the said judgment is not applicable in the facts of instant case in as much as the same was passed after noticing the conduct of the accused and that despite making an offer to make the payment and an assurance h....
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....tion 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. 14. The imperative essentiality of a single transaction as the decisive factor to enable the Court to direct the subsequent se....
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.... 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 mind that the sentence so imposed should not appeared to be lenient or fail to display any deterrent effect. It cannot be the object of law or the philosophy behind imposing of sentence that the same promotes violation or makes a violator-convict believe that he may commit multiple offences and thereafter seek concurrent running of the sentences. A transaction in the nature of issuance of multiple cheques towards discharge of one single liability has a potential of great misuse on either sides and just as it may incite an accused to swell his liability and to not pay the same despite issuance of multiple cheques, at the same time, there is immense possibility that the creditor secures multiple cheques for each installment and lodges different complaints against default of each cheque and claim consecutive running of....
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.... 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 considered to form a part of single transaction, the petitioner would be entitled to claim benefit under Section 427 Cr.P.C. for the remaining 03 criminal revision petitions and the sentences so imposed in the said cases can be ordered to run concurrently. It has also become essential to examine as to whether the sentence so imposed appears to be a flea-bite sentence and does not give semblance of extension of undue concession under law in favour of a person who is a violator of law. It has been noticed that even though the petitioner was convicted for commission of the offence and sentenced to undergo simple imprisonment for a period of 01 year, however, neither any sentence of fine or default punishment was imposed, nor any compensation awarded. Consequently, a revision petition had been preferred by the respondent-complain....
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....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 compensation, they were directed to serve their sentence. This court inter alia considered whether the compensation awarded to the injured could be legally sustained. This court observed that the power of the court under Section 357(3) to award compensation is not ancillary to other sentences, but it is in addition thereto and is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. This court further observed that it is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. Describing it as a constructive approach to crime, this court recommended to all courts to exercise this power liberally so as to meet the ends of justice in a better way. It was clarified that the order to pay compensation may be enforced by awarding sentence in default. The relevant observations of this court may b....
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.... (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 attached in execution of such warrant. (3) Where the court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law : Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." 14. Section 431 of the Code provides for recovery of any money (other than a fine) payable by virtue of any order made under the Code and the recovery of which is not otherwise expressly provided for. Compensation awarded by a court can fall in this category. Section 431 says that such money shall be recoverable as if it were a fine. Section 431 of the Code reads thus : "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....
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....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 amount of rupees five thousand because Judicial Magistrate First Class can as per Section 29 (2) of the Code pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding Rs. 5,000/-, or of both (the said amount is now increased to Rs. 10,000/-). This Court clarified that in such cases the Magistrate can alleviate the grievance of the complainant by taking resort to Section 357(3) of the Code. 18. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non-observance. The whole purpose of giving relief to the complainant under Section....
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....21 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 Section 421, after the words and figures `under Section 357', the words and figures `or an order for payment of costs under Section 359' had been inserted." Section 431 makes it clear that any money other than a fine payable on account of an order passed under the Code shall be recoverable as if it were a fine which takes us to Section 64 I.P.C. 30. Section 64 I.P.C. makes it clear that while imposing a sentence of fine, the court would be competent to include a default sentence to ensure payment of the same. For the sake of reference, Section 64 I.P.C. is set out hereinbelow: "64. Sentence of imprisonment for non-payment of fine. In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the court which sentences such offender to direct by the sentence that, in default of ....
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....iction contained in Section 431, to compensation payable under Section 357(3). 28. As is well known, a legal fiction is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. For example, see Prakash H. Jain v. Marie Fernandes, 2003(2) RCR (Rent) 559 : (2003) 8 SCC 431 at 438. However, once the purpose of the legal fiction is ascertained, full effect must be given, and it should be carried to its logical conclusion. This is clear from the celebrated passage in East End Dwelling Co. Ltd. v. Finsbry Borough Council, 1951 (2) All ER 587 a t 589: "if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs....