SHYAM PALversusDAYAWATL BESOYA & ANR.

                        [2016) 8 S.C.R. 419



                           SHYAM PAL                                   A
                                 v.
                  DAYAWATl BESOYA & ANR.
              (Criminal Appeal Nos. 988-989of2016)
                        OCTOBER 28, 2016                               B
           [DIPAK MISRA AND AMITAVA ROY, JJ.)
       Se11tence!Sentencing - Concurrence of sentence - Two
complaints u/s. J 38 of Negotiable J11stru111ents Act - Against
appellant-accused in respect of t11'o transactions - Conviction under
                                                                         c
bolh the cases - Sentence of simple imprisonment for JO months
and fine of Rs. 6,50, 0001- as compensation - Default sentence ll'as
six months imprisonme/1/ - Appellate court upheld the conviction
and sentence - Jn Revision High Court upheld the order of
conviction and sentence - However. reduced the default sentence
from 6 molllhs to 3 monlhs - Plea of the accused that the sentences D
should have run concurrently rejected by High Court - On appeal,
held: s. ./27 Cr.P. C. provides for concurrent sentence - Jn the present
cuse, both !he cases in respec/ of two transaclio'ns, though
undertaken at different points of time, should be deemed as a singular
transaction - Therefore, in the facts of the case, the accused is
                                                                         E
entilled to benefit uA . ./27 O:P.C. - Sentences of JO months simple
imprisonment in !he 111•0 complaillt cases would run concurrently -
Code of Criminal Procedure, 1973 - s../27 - Negotiable instruments
Act, J88J - s.J38.
      Partly allowing the appeals, the Court
                                                                        F
      HELD: 1.1 The materials on record leave 110 manner of
doubt that the complaints filed by the res11011dcnts 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             G
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 Negotiable         H
                              419
420            SUPREME COURT REPORTS                      [2016] 8 S.C.R.


A Instruments 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
B understandably is in the singular facts of the case. [Para 10)(423-
      D-F]
         2. The law on the orientation of two sentences awarded to
  an offender following his conviction successively, to define the
  cumulative duration thereof i~ envisaged in Section 427 Cr.P.C.
C The appellant is entitled to the benefit of the discretion contained
  in Section 427 Cr.P.C., in view of 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.
  It is thus ordered that the substantive sentences of 10 months
  simple imprisonment awarded to the appellant in the two
D complaint cases would run concurrently. The appellant would be
  entitled to all consequential reliefs with regard to his release
  from custody as available in law based on this determination.
  [Paras 12, 16 and 17)(424-B-C; 426-A-C]
            V.K. Bansal v. State of Haryana and Another [2013) 7
 E          SCR 617 : (2013) 7 SCC 211; Benson v. State of Kera/a
            [2016) 8 SCR 166 : 2016 (10) SCC 307 - relied on.
                             Case Law Reference
      2013 (7) SCR 617               relied on            Para 13
      (2016) 8 SCR 166               relied on            Para 15
 F          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 988-989 of20J 6.
            From the Judgment and Order dated 08.02.2016 of the High Court
      of Delhi at New Delhi in Crl. Rev. P. 403 of2015.
             Jayant K. Sud, Honey Khanna, Ajay P. Tushir, Mrs. Priya Puri,
 G
      I\ dvs. for the Appellant.

             The Judgment of the Court was delivered by
         AMITAVA ROY, J. I. The instant appeals call in question the
   judgment and order dated 08.02.2016 passed by the High Court of Delhi
 H in Criminal Revision Petition No.403 of2015, sustaining the conviction
          SHYAM PAL v. DAYAWATI BESOYA & ANR.                            421
                   [AMITAVA ROY, J.]

ofthe appellant under Section 138 of the Negotiable Instruments Act, A
1988 (hereafter referred to as the "Act") as recorded by the Trial Court
and affinned 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 B
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 as~ailed in the present appeals as
well.                                                                      C
      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. I 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 D
House Court, New Delhi which were registered as C.C. No.407 of
2011 and C.C. No.430 of2011 alleging that on 31.07.2008 the appellant
had visited the residence of the complainant and had requested for a
loan ofRs.5 lacs to meet his personal needs which he promised to return
on 13.11.2009. On this, as the complaint reads, the respondent/ E
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 ofRs.5 lacs to him as loan on that date, by
somehow arranging the same.                                               F
      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, Amar Colony, New Delhi. Both these cheques when
presented at the appropriate time, were dishonored with the remarks G
"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
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422   .         SUPREME COURT REPORTS                            [2016] 8 S.C.R.


A     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
 B    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. Jn case of default of payment of
      compensation, the appel Iant was ordered to suffer simple imprisonment
 c    of six months in each case. This was by judgments and orders dated
      21.0J.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
 D    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.404of2015. By
 E    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
 F    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
 G    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
 H
          SHYAM PAL v. DAYAWATI BESOYA & ANR.                              423
                   [AMITAVA ROY, J.]

ought to run concurrently, the High Court had failed to appreciate the A
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 offine as on date. That the appellant comes from
a poor financial background, as well as is the sole bread earner of the B
family and that ifthe 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.
       I 0. We have extended our required consideration to few facts
and the submissions made.                                                   C
      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             D
      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           E
      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             F
      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    G
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:
      (I )25.02.2015 to 13.12.2015 (As convict in CC No. 430/11)
                                                                            H
424            SUPREME COURT REPORTS                         [2016] 8 S.C.R.


 A          (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.
 B           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
 c          another offence. - (I) 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
 D          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
 E          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
. F
            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
 G
      pronouncements in V.K. B"nsal vs. State of Harymw an</ Anotller
      (2013) 7 sec 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
 H
           SHYAM PAL v. DAYAWATI BESOYA & ANR.                              425
                    [AMlTAVA ROY, J.)

that the discretion, Wc'tw,ld have to be exercised alongjudicial Jines cir not A
in a mechanical or ped~ntic 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 B
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.              C
       14. The imperative essentiality ofa single transaction as the decisive
factor to enable the Court to direct the subsequent sentence to run
concurrently with the previous oue was thus underscored. It was
expounded as wel Ithat the direction for concurrent running of sentence
would be limited to the substantive sentence alone.                           D
         15. Jn a more recent decision of this Court in Benson vs. State of
Ker(l/a - 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 ~uration of his E
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. B"11sal (supra) that it is F
diffi<;:ult 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 ifthe fine a
imposed had not been deposited, the default sentence or sentences would
rnn 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
                                                                              1-1
426             SUPREME COURT REPORTS                        [2016] 8 S.C.R.


A 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.
 B
          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, ifthe fine by way
   of compensation, as imposed, has not been paid by him. The appeals are
 C 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.

      Kalpana K. Tripathy                                  Appeals panly allowed.
 D