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2014 DIGILAW 768 (SC)

Nagpal Traders v. Davinder Singh

2014-07-22

N.V.RAMANA, RANJANA PRAKASH DESAI

body2014
ORDER : Leave granted. 2. The appellant before us is the complainant. The complainant is a firm ("complainant-firm"). The respondent is the accused. By the impugned order the High Court disposed of three revision petitions filed by the respondent. 3. The case of the complainant-firm is that the respondent had dealings with the complainant-firm and as per account books of the complainant-firm upto 31/03/2002 an amount of Rs.14,74,753.40 was due from the respondent to the complainant-firm. To repay the said amount the respondent issued three cheques, two in the sum of Rs.5,00,000/- (Rupees five lakh only) each and one in the sum of Rs.4,00,000/- (Rupees four lakh only). The cheques when presented, were dishonoured. The complainant-firm issued legal notices in respect of the three dishonoured cheques. As the money was not paid, three complaints came to be filed under Section 138 of the Negotiable Instruments Act, 1881 ("the NI Act"). 4. The trial court convicted the respondent in each case for offence punishable under Section 138 of the NI Act and sentenced him to undergo RI for two years and to pay a fine of Rs.5,000/- in each of the three complaints. The Sessions Court dismissed the respondent's appeals. 5. Being aggrieved by the said dismissal, the respondent filed three revision applications in the High Court. The impugned order indicates that during the course of hearing, counsel for the respondent made a statement that the respondent does not want to challenge his conviction under Section 138 of the NI Act. Counsel submitted that the sentence awarded in all the three cases be ordered to run concurrently. The High Court maintained the conviction of the respondent under Section 138 of the NI Act. However, the High Court reduced the sentence of imprisonment from two years RI to one year RI in each of the three cases. The High Court ordered the sentence in all the three cases to run concurrently. The respondent was directed to deposit an additional amount of fine to the tune of Rs.20,000/- in each case before the trial court within one month from the date of judgment. The additional amount of fine deposited by the respondent before the trial court was ordered to be released to the complainant-firm forthwith. The respondent was directed to deposit an additional amount of fine to the tune of Rs.20,000/- in each case before the trial court within one month from the date of judgment. The additional amount of fine deposited by the respondent before the trial court was ordered to be released to the complainant-firm forthwith. The High Court observed that in case the respondent fails to deposit the additional amount of fine before the trial court within one month from the date of judgment, the petitions will be deemed to have been dismissed. The said order is challenged by the complainant-firm in these appeals. 6. We are informed that the additional amount of fine imposed by the High Court has been deposited by the respondent as directed by the High Court and the complainant-firm has received the said amount. This fact has been confirmed by the counsel for the complainant-firm. We are also informed by the counsel for the respondent that the respondent has undergone one year's sentence and he is a free citizen today. 7. Learned counsel for the complainant-firm submitted that learned Magistrate had rightly sentenced the respondent to undergo RI for two years in each of the three cases. Counsel submitted that since the amount involved in the three cases was about Rs.14,74,753/-, the High Court ought not to have shown leniency and reduced the sentence to one year's RI in each case and grant concurrency without assigning any reasons for the lenient view. In support of her submissions, counsel relied on State of U.P. v. Chandrika, (1999) 8 SCC 638 , Suganthi Suresh Kumar v. Jagdeeshan, (2002) 2 SCC 420 and Jeetu @ Jitendra & Ors. v. State of Chhattisgarh, (2012) 11 SCALE 630 . Counsel submitted that the High Court wrongly granted concurrency because the three cheques related to three different transactions. 8. Counsel for the respondent submitted that benefit of concurrency was rightly granted by the High Court because the complaints arise out of a single transaction and the cheques also pertain to that single transaction. In support of this contention, the counsel relied on V.K. Bansal v. State of Haryana and Anr., (2013)7 SCC 211 . 9. We must first refer to the conduct of the respondent. In support of this contention, the counsel relied on V.K. Bansal v. State of Haryana and Anr., (2013)7 SCC 211 . 9. We must first refer to the conduct of the respondent. During the course of hearing of these appeals, we gave opportunity to the respondent to pay the cheque amounts or at least to pay some amount to the complainant-firm because before the High Court the respondent did not challenge his conviction. He only prayed for concurrency. Thus, he admitted his liability. We requested the respondent's counsel to contact the respondent and communicate his response to us. The appeals were adjourned for that purpose. Today counsel for the respondent made a statement that the respondent is not in a position to pay any amount. The respondent has not even cared to remain present in the court. We are unhappy with this approach of the respondent. It is obvious that since the respondent has undergone one year's sentence, he is not willing to pay any amount to the complainant-firm. We shall, therefore, deal with the rival submissions. We find substance in the submission of learned counsel that the High Court has shown undue leniency to the respondent. No reasons have been assigned by the High Court for this approach. This Court has on several occasions cautioned the courts that undue leniency should not be shown to the accused facing charges under Section 138 of the NI Act. We may usefully refer to the observations of this Court in Suganthi Suresh Kumar where this Court has expressed displeasure about courts imposing a flea-bite sentence on the accused in cases under Section 138 of the NI Act. Following paragraph could be usefully quoted: "12. The total amount covered by the cheques involved in the present two cases was Rs.4,50,000. There is no case for the respondent that the said amount had been paid either during the pendency of the cases before the trial court or revision before the High Court or this Court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial court. If the amounts had been paid to the complainant there perhaps would have been justification for imposing a flea-bite sentence as had been chosen by the trial court. But in a case where the amount covered by the cheque remained unpaid it should be the lookout of the trial Magistrates that the sentence for the offence under Section 138 should be of such a nature as to give proper effect to the object of the legislation. No drawer of the cheque can be allowed to take dishonour of the cheque issued by him light-heartedly. The very object of enactment of provisions like Section 138 of the Act would stand defeated if the sentence is of the nature passed by the trial Magistrate. It is a different matter if the accused paid the amount at least during the pendency of the case." The above observations are clearly attracted to this Case. It is not the case of the respondent that he has paid any amount to the complainant-firm during the pendency of these cases. He has shown scant regard to this Court's wishes. The amount involved is about Rs.14,74,753/-. The respondent should not have been, therefore, given a flea-bite sentence. 10. We may also refer to the judgment of this Court in the case of Jeetu @ Jitendra where this Court has while considering as to how the appeal should be disposed of by the appellate court when there is no challenge to conviction observed that it is the obligation of the Court to decide the appeal on merits and not accept the concession and proceed to deal with the sentence, for the said mode and method defeats the fundamental purpose of the justice delivery system. This Court further noted that there are many cases where the High Courts after recording the non-challenge to the conviction, have proceeded to dwell upon the proportionality of the quantum of sentence. It was observed that such a course is impermissible in law and should not be resorted to. We respectfully agree with this view of this Court. We are dealing with one of such cases. In our opinion, the High Court should not have shown leniency to the respondent. We will have to therefore rectify the error committed by the High Court. 11. We respectfully agree with this view of this Court. We are dealing with one of such cases. In our opinion, the High Court should not have shown leniency to the respondent. We will have to therefore rectify the error committed by the High Court. 11. So far as the question of concurrency is concerned, it is clear from the averments made in the complaints and the judgments of the trial court and lower appellate court that the cheques in question do not relate to one single transaction. The judgments cited by learned counsel for the respondent have, therefore, no application to this case. Besides the respondent has shown disrespect to this Court. Taking an overall view of the matter we are inclined to set aside the impugned order and restore the orders of the trial court. 12. In the circumstances, we set aside the impugned order and restore the order of the trial court in all the three cases. Since the enhanced fine amounts have already been paid, there is no need to pass any order in that connection. Since the respondent has already been released from jail after having served one year of imprisonment, he shall be taken into custody to serve the remaining sentence. 13. The appeals are disposed of in the aforestated terms.