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Judgment
S.K. Gangele, J.—1. This revision petition has been filed against the judgment dated 17.5.2014 passed in Criminal Appeal No. 295 of 2014. The appellate court affirmed the judgment passed by the trial court in R.T. No. 4361 of 2010. The appellate court and trial court have held the petitioner guilty for commission of offence punishable under Section 138 of Negotiable Instruments Act and awarded sentence RI for one year and compensation of Rs. 3,65,000/-. In failure to pay the compensation the court awarded further sentence of RI three months and cost of Rs. 10,000/-.
The petitioner had issued the following cheques:-
When the cheques were presented for encashment, the cheques were returned by the bank with the objection that there was no credit/insufficient fund in the account of the petitioner. Inspite of service of notice, the petitioner did not pay the amount, hence the respondent filed complaint before the trial court. It was pleaded by the respondent that it was in the business of selling cereals and it had sold the cereals to the petitioner Dallmill on credit for the period between February 2006 to 2007 through 26 bills and total amount of Rs. 71,01,933/- was due against the petitioner. The respondent also paid the amount of Rs. 67,20,000/- to the petitioner. Thereafter, the petitioner issued the cheques in favour of complainant of his account of Dharneshwar Nagrik Shakari Bank, Bhopal. The aforesaid cheques were deposited by the respondent in the Union Bank of India, Branch Jumarati for encashment in his bank account. However, the cheques were returned back with the endorsement of insufficient fund. Thereafter, a notice was issued and inspite of that notices no payment was made.
The trial court after appreciation of evidence has held that the petitioner had issued cheques and the cheques were dishonoured and inspite service of notice, the petitioner did not repay the amount of cheques to the respondent. The complaint was filed within time and the trial court awarded the sentence.
The petitioner had taken a plea before the trial court that the cheques were issued as a security of loan because the complainant, Sachdewa had assured the petitioner that he would help the petitioner in regard to redemption of his property which was mortgaged with the bank and if his property is redeemed, he shall execute the sale deed of the land in favour of the complainant, hence 23 cheques were issued. A letter was also issued to the authorized officer of Punjab & National Bank in this regard by Mr. Sonu Sachdewa. Because Sonu Sachdewa did not deposit the amount of compromise with the bank, hence, the proposal of compromise was rejected by the bank and thereafter the cheques were presented for encashment.
Both the courts below have considered this plea and rejected the same by holding that the bills were issued by the complainant to the petitioner showing the fact that the petitioner - firm had received costs and amount which was due against the petitioner-firm. In my opinion, both the courts have appreciated the evidence in this regard and have not committed any error of jurisdiction. Hence, both the courts have rightly held that the petitioner is guilty for commission of offence punishable under Section 138 of Negotiable Instruments Act and awarded proper sentence.
Now the question is in regard to the fact that whether all the sentences awarded in different five cases by the trial court and affirmed by the appellate court shall run concurrently or consecutively. Near about 26 cheques were issued by the petitioner in favour of the complainant. Total five cases were filed against the petitioner in regard to following cheques:-
Sl No.
1
Regular Trial No.
Cheques No./Date
Total Amount ((In rupees)
Conviction
4364/2010
196379/20.12.0009
Rs.15,79,447.
In all 5 cases
( 6 cheques)
196394/30.12.2009 256404/30.12.2009 256407/30.12.2009 256440/10.01.2010
1 years RI
2
256449/10.01.2010
4361/2010
368245/30.01.3020
Rs.2,68,439.
+ 3 months SI
3
(1 cheque)
(u/s. 357 (3))
4357/2010
172560/10.02.2010
Rs.12,29,607.
+ 7 days SI
(5 cheques)
232849/23.09.2009 196331/11.12.2009 196332/30.12.2009
(u/s. 359)
4
196333/01.12.2010
4358/2010
256481/10.01.2010
Rs.15,83,063.
(6 cheques)
256474/12.01.2010 256475/20.01.2010 256486/20.01.2010 256487/30.01.2010
5
256498/30.01.2010
4356/2010
196338/10.12.2009
Rs.13,74,541.
(5 cheques)
196339/10.12.2009 196358/10.12.2009 196359/20.12.2009 196378/06.12.2009
Total
60,35,097
The trial court held that the sentences shall run consecutively and not concurrently.
The question is that whether the petitioner is eligible to get the benefit of Section 427 of Cr.P.C., or not. Section 427 of Cr.P.C. reads as under:-
"Sentence on offender already sentenced for another offence
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.
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.
The section stipulates that when a person is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment the court has discretion to order that subsequent sentence shall run concurrently with previous sentence.
The Supreme Court in Mohd. Akhatar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention) Ahmedabad and others , AIR 1988 SC 2143 has held as under in regard to discretion of the court:-
"10. 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. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different"
A Full Bench of this court in Shersingh Vs. State of M.P. 1989 Cri.L.J. 662 has held as under in regard to power of court to pass the order under Section 427 of the Cr.P.C.:-
"The reference is, therefore, answered by saying (i) that the decision of this Court in A.S. Naidu v. State of M.P. , 1975 Cri.L.J. 498 (supra) is no longer good law to the extent it says that power under Section 427(1) of the Code can be exercised by the trial or appellate court at any stage at any time even after decision on merits in the case but not Under Section 482 and the court does not become functus officio. (ii) The High Court has power in appropriate cases to entertain an application under Section 482 of the Code by invoking its inherent powers at any time subsequent to the decision in a given case even if the trial court or the appellate or revisional court has failed to exercise its discretion under Section 427(1) of the Code. The case be now placed before the single Bench for decision on merits.
A Single Bench of Andhra Pradesh High Court in Bandamedi Shankar and others etc. Vs. State of Andhra Pradesh 2003 Cr.L.J. 2242 has held as under:-
"68. In Ammavasai V. Inspector of Police , 2000 (9) SCC 759: (2000 Cri.L.J. 4662), the Hon''ble Supreme Court affirmed the view that consolidation of sentences against the same accused in various cases is permissible. As regards exercise of that power it had struck a balance between the wholesale consolidation of sentences and total denial of the facility. The sentences in various cases were clubbed into two groups depending on the number of cases in which the respective appellants are involved and the sentences in the cases in each group were directed to run concurrently. The resultant sentences in the respective groups were ordered to run one after the other."
The principle of law is clear from the above quoted judgments that the court has to apply its discretion while ordering that the sentence shall run concurrently and in applying the aforesaid discretion various facts have to be considered.
In the present case there was a complaint in regard to issuance of total five cheques. The petitioner had issued cheques against the purchase of goods. The petitioner firm is owner of Dalmill. The petitioner had taken defence before the trial court that the cheques were issued to the complainant because the complainant had assured the petitioner that the complainant would insure redemption of land which was mortgaged by the petitioner-firm with the bank and proposal for compromise was forwarded to the bank and when the complainant did not deposit the amount which was required as per proposal by the bank, hence, the proposal was turned down. The petitioner had issued registered notice, (Ex. D-7) to the complainant on 8.2.2010 and requested the complainant to return the cheques. However, the complainant had deposited all the 23 cheques with the bank for encashment and thereafter filed the private complaint. It appears that there was a dispute of same transaction. In this view of the matter, in my opinion, it would be just and proper if this court order that the jail sentence awarded in all the five cases shall run concurrently.
Hence, the criminal revision is partly allowed. The conviction, jail sentence and the compensation awarded by the trial court and affirmed by the appellate court and also the costs are hereby upheld. However, it is held that the sentences awarded by the courts below in R.T. No. 4364/2010, R.T. No. 4361/2010, R.T. No. 4357/2010, R.T. No. 4358/2010 and R.T. No. 4356/2010 shall run concurrently. If the petitioner has already completed the jail sentence as awarded by the trial court and affirmed by the appellate court, he shall be released forthwith, if his presence is not required in any other case except mentioned above in the order.