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2022 DIGILAW 264 (PNJ)

Hardyal Singh Cheema v. State Of Punjab

2022-02-07

GURVINDER SINGH GILL

body2022
JUDGMENT MAIN CASES 1. The petitioner assails judgment dated 16.8.2021 passed by learned Sessions Judge, Bathinda vide which an appeal filed by the petitioner assailing judgment dated 14.2.2020 passed by learned JMIC, Bathinda holding him guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 has been dismissed. 2. It has inter alia been submitted that as many as 37 different complaints under provisions of Section 138 of the Negotiable Instruments Act, 1881 were instituted against the petitioner at the instance of M/s Vinod Cotton Corporation and the petitioner was simulatenously held guilty in all the 37 cases by way of separate judgments passed by learned JMIC, Bathinda on 14.2.2020 wherein rigorous imprisonment of two years was imposed in each of the said complaints apart from issuance of directions to pay compensation which in all runs into crores of rupees. 3. It has further been submitted that since the learned Magistrate was seized of all the 37 complaints and had convicted the petitioner on the same very day, the Magistrate cannot feign ignorance about the pendency of all the 37 cases and as such was expected to have made the sentence concurrent. It has been submitted that the petitioner is more than 60 years in age and in case it is taken that he has to undergo two years in each of the 37 cases consecutively then he would be required to being imprisoned for the next 74 years. 4. The learned counsel has further submitted that even the Court of Sessions while dismissing the appeal did not look into the said aspect and when an application was moved by the petitioner for making some clarification in this regard, the same was dismissed on the ground that the Court had become Functus Officio vide order dated 29.9.2021 (Annexure P-2). 5. The learned counsel has further submitted that in the instant case, the compensation, as ordered by the trial Court, has been ordered to be paid by the accused jointly and severally i.e. by the company and also by the Directors. 5. The learned counsel has further submitted that in the instant case, the compensation, as ordered by the trial Court, has been ordered to be paid by the accused jointly and severally i.e. by the company and also by the Directors. The learned counsel submits that it is well settled proposition of law that a Director cannot be prosecuted without the company being arrayed as a party and that the very purpose of the same is that the Director would not have issued the cheques in question in his personal capacity and it would be only on behalf of the company that he would have acted so and in any case, the liability, if any, is of the company and not of the Director in person. It has been submitted that the petitioner in his personal capacity is unable to pay crores of rupees as has been imposed and that the same at best could be recovered from the assets of the company which already stand seized, pursuant to judgment dated 6.10.2021 (Annexure P-1). It has been submitted that vide judgment dated 6.10.2021 (Annexure P-1) passed by the National Company Law Tribunal, Chandigarh Bench, Chandigarh, in a petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by 'Kotak Commodity Services Private Limited and Kotak Ginning and Pressing Industries' against 'Cheema Spintex Limited', proceedings in respect of Corporate Insolvency Process (CIRP) have been initiated against Cheema Spintex Limited and as such, the petitioner has no domain over his assets. 6. On the other hand, the counsel representing the complainant has vehemently argued that the petitioner cannot be let off easily as he has siphoned off crores of rupees and had not even chosen to deposit 25 per cent of the compensation amount before the lower Appellate Court, as mandated under provisions of Section 148 of the Negotiable Instruments Act, 1881. It has further been submitted that in view of the facts of the case and enormity and multiplicity of the offences committed by the petitioner, no leniency is warranted and that there is no room for making the sentence concurrent. 7. I have heard learned counsel for the parties. 8. There are arguable points involved in the revision petitions, particuarly as regards the concurrency of sentence. The Revision petitions, as such, are admitted. 7. I have heard learned counsel for the parties. 8. There are arguable points involved in the revision petitions, particuarly as regards the concurrency of sentence. The Revision petitions, as such, are admitted. Miscellaneous Applications - pertaining to stay of payment of compensation filed separately in the above mentioned 20 cases Notice reg: stay of payment of compensation to the respondents. On asking of the Court, Mr. Ajay Pal Singh Gill, DAG, Punjab, accepts notice on behalf of the respondent-State. In view of the reasons mentioned in the applications, the same are allowed and the recoveiy of fine shall remain stayed during pendency of the petitions. However, the complainant would be at liberty to move an application for vacation of the said stay in case the complainant has definite information about the assets of the petitioner owned by him in his personal capacity from which the aforesaid compensation may be realised. Miscellaneous Applications - pertaining to suspension of sentence filed separately in the above mentioned 20 cases Notice reg: suspension of sentence to the respondents. On asking of the Court, Mr. Ajay Pal Singh Gill, DAG, Punjab, accepts notice on behalf of the respondent-State. In view of the reasons mentioned in the applications, the same are allowed and the substantive sentence of imprisonment as imposed upon the applicant-petitioner shall remain suspended during pendency of the petitions, subject to his furnishing bail bonds/surety bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, concerned. The applications stand disposed off accordingly. A photocopy of this order be placed on the files of connected cases.