TMI Blog2017 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... been misused by the respondent/complainant-Bank by putting different dates on the cheques. The cheques issued are of different dates and the legal demand notices issued by the respondent/complainant-Bank are of different dates constituting separate cause of action. Mere availing of the OCC/OD limit of ₹ 50,00,000/- does not ipso facto suggest that the offence committed is one. Whereas, the cheques issued on the different dates constitute different cause of action under Negotiable Instruments Act. The trial Court correctly awarded substantive sentence to run consecutively rather than to award the sentence concurrently although the cheques issued by the petitioner were to meet their outstanding liability for the OCC/OD limit availed by him qua against the respondent/complainant-Bank but it does not form one single transaction rather constitute separate cause of action. - CRL.REV.P. 262, 263 , 264/2017 - - - Dated:- 3-7-2017 - I. S. Mehta, J. For the Petitioner : Mr. Jatan Singh and Mr. Pawan Madhukar, Advocates For the Respondents : Ms. Seema Gupta, Advocates Mr. Izhar Ahmad, APP for State. JUDGMENT I. S. Mehta, J. 1. Instant revision petitions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 092828 ₹ 2,50,000/- 27.04.2007 25.07.2007 insufficient funds 02.08.2007 5. 092832 ₹ 2,50,000/- 24.04.2007 25.07.2007 insufficient funds 02.08.2007 In CC. No. 535342/2016 6. 092833 ₹ 5,00,000/- 30.07.2007 31.07.2007 insufficient funds 02.08.2007 3. It is further alleged in the complaints under Section 138 NI Act that the respondent/complainant-Bank issued legal notices upon the petitioner demanding therein the payment of the said cheque amounts within 15 days from the receipt of the legal notices but the petitioner failed to make the payment of the cheque amounts in question to the respondent/complainant-Bank. Consequently, the respondent/complainant-Bank filed separate complaint cases under Section 138 of NI Act before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/2016. 4) Shyam Pal vs. Dayawati Besoya and Ors.; MANU/SC/1363/2016. 5) Pankaj Kumar vs. Sunil Kumar Vaid; MANU/DE/3252/2011. 6) Thakur Arora vs. The State NCT of Delhi and Anr.; MANU/DE/1549/2009. 7) Nusun Genetic Research Ltd. and Ors. vs. The State of Telengana and Ors.; MANU/AP/0868/2015. 8. The learned counsel for the petitioner has further submitted that the conviction orders passed by the trial court is not in consonance with the facts and record of the case and there is a violation of settled procedure of law and are based upon conjectures and surmises. 9. The learned counsel for the petitioner has further submitted that it is the duty of the appellate Court hearing an appeal against conviction to decide the said appeal on merits but in the present case the learned appellate Court ignored this vital aspect of law and went ahead in deciding the appeal only on the point of substantive sentence of imprisonment therefore it is bad in law and liable to be set aside. Reliance is placed on the judgment of the Hon'ble Supreme Court in case Kalu Ram and Anr. vs. State of Delhi; MANU/SC/8201/2006 and judgment of the Calcutta High Court in case Nanilal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the trial Court and only prayed for leniency on the point of substantive sentence of imprisonment before the appellate Court therefore, the present revision petitions are liable to be dismissed for want of any merit. Reliance is placed of the judgments of the Hon'ble Supreme Court in the cases A.K. Vijaya Kumar vs. R. Mohan; MANU/SC/0520/2012 and Sampelly Satyanarayana Rao vs. Indian Renewable Energy Agency Ltd.; MANU/SC/1021/2016. 14. The instant petitions are arising out of the impugned judgment passed in the following appeals:- i. Criminal Appeal No. 24/2017 ii. Criminal Appeal No. 23/2017 iii. Criminal Appeal No. 25/2017 wherein the appellate Court upheld the conviction of the petitioner but modified the substantive sentence of imprisonment by reducing the simple imprisonment for a period of six months to a period of three months passed in each complaint case, i.e. CC. No. 535341/16, CC. No. 535338/16 and CC. No. 535342/16. 15. The Hon'ble Supreme Court in the case of Kusum Ingots Alloys Ltd. vs. Pennar Peterson Securities Ltd. And Others; (2000) 2 SCC 745 has laid down the following ingredients for taking cognizance under Section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC/OD limit of ₹ 50,00,000/- availed by the petitioner from the respondent/complainant-Bank which makes a legally enforceable liability qua against the petitioner. The reliance is placed on the judgment in the case Sampelly Satyanarayana Rao (supra) wherein the distinction has been drawn by the Apex Court which is reproduced as under:- 7. It will be appropriate to reproduce the statutory provision in question which is as follows: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce payment could not be considered as discharge of any subsisting liability. View to this effect of the Andhra Pradesh High Court in Swastik Coaters (P) Ltd. v. Deepak Bros. (1997) Crl. LJ 1942 (AP), Madras High Court in Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd. (1999) 1 CTC 6 (Mad), Gujarat High Court in Shanku Concretes (P) Ltd. v. State of Gujarat (2000) Crl LJ 1988 (Guj) and Kerala High Court in Supply House v. Ullas (2006) Crl. LJ 4330 (Ker) was held to be correct view as against the view of Delhi High Court in Magnum Aviation (P) Ltd. v. State (2010) 172 DLT 91 : (2010) 118 DRJ 505 and Mojj Engg. Systems Ltd. v. A.B. Sugars Ltd. (2008) 154 DLT 579 which was disapproved. 10. We have given due consideration to the submission advanced on behalf of the Appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression for discharge of any debt or other liability occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for discharge of debt or liability depends on the nature of the transaction. If on the date of the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. While approving the views of different High Courts noted earlier, this is the underlying principle as can be discerned from discussion of the said cases in the judgment of this Court. 14. In Balaji Seafoods (supra), the High Court noted that the cheque was not handed over with the intention of discharging the subsisting liability or debt. There is, thus, no similarity in the facts of that case simply because in that case also loan was advanced. It was noticed specifically therein-as was the admitted case of the parties-that the cheque was issued as security for the advance and was not intended to be in discharge of the liability, as in the present case. 15. In HMT Watches Ltd. v. M.A. Abida (2015) 11 SCC 776, relied upon on behalf of the Respondent, this Court dealt with the contention that the proceedings Under Section 138 were liable to be quashed as the cheques were given as security as per defence of the accused. Negativing the contention, this Court held:- 10. Having heard the learned Counsel for the parties, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable. 12. In Rallis India Ltd. v. Poduru Vidya Bhushan [MANU/SC/0422/2011 : (2011) 13 SCC 88], this Court expressed its views on this point as under: (SCC p. 93, para 12) 12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the Respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remarks Insufficient Funds vide dishonour memos dated 12.06.2007 in cheque no. 092831 of ₹ 2,50,000/- and cheque no. 092830 of ₹ 2,50,000/-, 25.07.2007 in cheque no. 092829 of ₹ 5,00,000/-, cheque no. 092828 of ₹ 2,50,000/- and cheque no. 092832 of ₹ 2,50,000/- and 31.07.2007 in cheque no. 092833 of ₹ 5,00,000/-; 4) the respondent/complainant-Bank had sent legal notices dated 20.06.2007 for cheque no. 092831 of ₹ 2,50,000/- and cheque no. 092830 of ₹ 2,50,000/-, 02.08.2007 for cheque no. 092829 of ₹ 5,00,000/-, cheque no. 092828 of ₹ 2,50,000/- and cheque no. 092832 of ₹ 2,50,000/- and 02.08.2007 for cheque no. 092833 of ₹ 5,00,000/-; to the petitioner upon dishonouring of the aforesaid six cheques which are within 15 days of the receipt of information by respondent/complainant from the bank regarding the return of the cheques as unpaid; 5) the petitioner failed to make payment of the said amount to the respondent/complainant-Bank (the holder in due course of the cheque) within 15 days of the receipt of the said legal notices dated 20.06.2007 and 02.08.2007. 20. On bare perusal of the abovementioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioner that the it forms part of one single transaction giving rise to one cause of action and the same could not be said to be distinct offences committed in each of the complaint cases to attract the provisions of Section 138 of the Negotiable Instruments, Act having different cause of action is not convincing as there is no plea on record to suggest that the cheques were issued on the same day/time/place/date and were undated which have been misused by the respondent/complainant-Bank by putting different dates on the cheques. 23. However, the cheques issued are of different dates and the legal demand notices issued by the respondent/complainant-Bank are of different dates constituting separate cause of action. Mere availing of the OCC/OD limit of ₹ 50,00,000/- does not ipso facto suggest that the offence committed is one. Whereas, the cheques issued on the different dates constitute different cause of action under Negotiable Instruments Act. 24. The trial Court correctly awarded substantive sentence to run consecutively rather than to award the sentence concurrently although the cheques issued by the petitioner were to meet their outstand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The aforesaid Section is a discretionary in nature and this court has already said so in the case of M/s U Turn Housing Pvt. Ltd. Anr. vs. State of (GNCT) of Delhi Anr; Crl M.C. 820/2016 date of decision 19.08.2016 and the Apex Court in the case of V.K. Bansal (supra) has made it clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
