advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, October 28, 2016

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 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.

                                                                  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  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 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.

(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 (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 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.

(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  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 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 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.

(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  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 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.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.