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2016 (12) TMI 1093

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..... ction. Therefore, the substantive sentence awarded to the revisionists could have been one year concurrently rather than independent/consecutive sentence in each complaint cases The conviction of the revisionists in the eighteen complaint case under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 is affirmed. The Court below went wrong while awarding substantive sentence to run consecutively rather than to award the sentence concurrently. - CRL.REV. P. 745/2015 and Crl.M.A.No.18368/2015, CRL.REV.P. 141/2016, CRL.REV.P. 142/2016, CRL.REV.P. 143/2016, CRL.REV.P. 144/2016, CRL.REV.P. 145-158/2016, - - - Dated:- 20-12-2016 - MR. I.S. MEHTA J. Revisionists Through: Ms.Rebecca M. John, Sr. Advocate with Mr.Bhavesh Chauhan, Mr.Harsh Bora, Mr.Nikhil Ahuja and Mr.Paulson, Advocates. Respondents Through: Mr.Sanjeev Narula, Advocate. Mr.Izhar Ahmad, APP for State. JUDGMENT I.S.MEHTA, J: 1. The instant revision petitions, i.e., (1) Crl Rev.P. 745/2015, (2) Crl Rev.P. 141/2016, (3) Crl Rev.P. 142/2016, (4) Crl Rev.P. 143/2016, (5) Crl Rev.P. 144/2016, (6) Crl Rev.P. 145/2016, (7) Crl Rev.P. 146/2016, (8) Crl Rev.P. 147/2016, (9) C .....

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..... ionist approached the respondent for assistance to effect import of 5050 MT(+-5%) and 1350 MT (+-5%) of Prime Hot Rolled Wire Rods from M/s Rizhao Steel Wires Co. Ltd. and Ever Gain International Corporation, Hong Kong respectively. The respondent/complainant, at New Delhi, entered into two agreements dated 18.03.2008 and 03.04.2008, described as 'Associateship Agreements' to effect import of the said goods from the foreign suppliers. 4. After the said agreements were executed, the respondent/complainant imported the said goods from the foreign suppliers vide two letters of credit bearing no. DCGLC 9032-/08 dated 19.03.2008 and DCGLC 9041-N 08 dated 09.04.2008. Thereafter, the revisionists and respondent entered into two agreements at New Delhi dated 13.05.2008 and 26.06.2008 described as 'High Seas Sale Agreements' by which the said goods were purchased by the revisionists from the respondent/complainant in terms of the previous two Associateship Agreements. The total quantity of goods imported by the respondent and as purchased by the revisionists were 4938.676 MT worth USD 4, 370, 728.27 under LC No. 9032 and 1372.633 MT worth USD 1,365,769.84 under LC No. 904 .....

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..... 274653 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2010 4 903/2011 274651 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2010 5 910/2011 274659 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2010 6 911/2011 274659 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2010 7 906/2011 274793 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2010 8 907/2011 274790 dt.31.0 3.2010 Rs.50,00,000/- 31.03.2010 26.04.2010 sent on 27/28.04.2010 9 898/2011 274789 .....

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..... ce punishable under Section 138 of the Negotiable Instruments Act, 1881 and directed them to pay a fine of ₹ 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 dismissed the appeals vide a single order dated 03.11.2015. Hence the present revision petitions. 9. The learned senior counsel appearing for the revisionists submits that she does not wish to argue the present revision petitions on merit of the impugned judgment. However, she submits that these are 18 connected matters arising out of 18 complaints. She further submits that originally 20 criminal complaints under Section 138 of the Negotiable Instruments Act,1881 were filed by the respondent/complainant (respondent No.1 herein) against the present revisionists. In the two complaints bearing C.C.No.895/2011 and C.C.No.896/2011, the revisionists .....

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..... tting 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 there are no distinct offences committed by the revisionists to impose Section 138 read with Section 141 of N.I. Act for different causes of actions. 11. The learned senior counsel further submits that though the substantive sentence awarded to the revisionists is one year, however, in effect it comes to 18 years in 18 complaints plus default sentence of 9 years (6 months each in 18 complaints). Thus, the total sentence awarded to the revisionists comes to 27 years which is more than life imprisonment and the same cannot be sustained in law. 12. The learned senior counsel has further submitted that as far as substantive sentence .....

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..... idered 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 that there is no arguments made on the side of merit, therefore conviction qua against the revisionists requires no interference by this Court. The concurrent running of sentence got two limbs, one Substantive sentence and second Default sentence under Section 357(3) of Cr.P.C. The respondent/complainant is a government company and admittedly the compensation amount has not been paid. The learned counsel for the respondent has pointed out that the default amounts are cheque amounts of the government money and the intent of the lower Court is to recover the government money as compensation. 18. The learned counsel for respondent sub .....

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..... y 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 ₹ 9,94,98,634/- qua against the respondent company which is a government company. All the cheques issued were of ₹ 50 lakhs each. The said cheques on presentation by the respondent were dishonoured with a remark 'exceeds arrangements'. In C.C.No. 894/2011 the demand notice was issued on 29.06.2010 and the same was dishonoured vide return memo dated 12.06.2010 with a remark 'exceeds arrangements' and in rest of the seventeen complaint cases, i.e., CC No. 909/2011, CC No. 899/2011, CC No. 903/2011, CC No. 910/2011, CC No. 911/2011, CC No. 906/2011, CC No. 907/2011, CC No. 898/2011, CC No. 905/2011, CC No. 904/2011, CC No. 157/2013, CC No. 902/2011, CC No. 912/2011, CC No. 901/2011, CC No. 900/2011, CC No. 908/2011 and CC No. 897/2011, the demand notices were issued on 26.04.2010 and the cheques were dishonoured on 31.03.2010 with remarks 'exceeds .....

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..... es 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 ₹ 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 fine. (1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term- (a) is not in excess of the powers of the Magistrate under section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence .....

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..... turn 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. Act, whereas the learned Metropolitan Magistrate has awarded the compensation of only ₹ 51 lakhs in each complaint cases with the intent to recover the government money from the revisionists and nothing biased/adverse qua against the revisionist exist in the factual parametric of the present revision petitions. The Apex Court has also held that the Court can impose sentence in default of payment of compensation awarded, reliance could be placed on the judgments Hari Singh vs. Sukhbir Singh And Others reported at 1988 4 SCC 551 and Suganthi Suresh Kumar vs. Jagdeeshan reported at 20 .....

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..... 31. The respondent is directed to take action in civil side too besides its criminal liability qua against the revisionists subject to the limitation as the money involved is the tax payers/government money subject to the limitation and if the action is not taken till date within limitation then necessary departmental action be taken against the officials responsible for not taking such action within a statutory period of limitation and necessary compliance be sent to the Court below. 32. Consequently, the present revision petitions are disposed off accordingly. Let one copy of this judgment be placed on the files of the remaining seventeen revision petitions, i.e., Crl Rev.P. 141/2016, Crl Rev.P. 142/2016, Crl Rev.P. 143/2016, Crl Rev.P. 144/2016, Crl Rev.P. 145/2016, Crl Rev.P. 146/2016, Crl Rev.P. 147/2016, Crl Rev.P. 148/2016, Crl Rev.P. 149/2016, Crl Rev.P. 150/2016, Crl Rev.P. 151/2016, Crl Rev.P. 152/2016, Crl Rev.P. 153/2016, Crl Rev.P. 154/2016, Crl Rev.P. 155/2016, Crl Rev.P. 157/2016 and Crl Rev.P. 158/2016. No order as to costs. 33. Let one copy each of this judgment be sent to the concerned Court and be placed on the files of the aforesaid 18 complaint cases. .....

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