Punjab-Haryana High Court
Sunita vs Hastna Arora And Anr on 7 November, 2024
Neutral Citation No:=2024:PHHC:146179
CRR-1062-2024 (O&M) & -1-
CRR-1852-2024 (O&M)
238 (2 cases)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-1062-2024 (O&M)
Date of Decision : 07.11.2024
SUNITA ....Petitioner
VERSUS
HASTNA ARORA AND ANOTHER
.....Respondents
CRR-1852-2024 (O&M)
SUNITA ....Petitioner
VERSUS
HASTNA ARORA AND ANOTHER
.....Respondents
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Rajesh Dhankar, Advocate with
Mr. Nihal S. Choudhary, Advocate,
for the petitioner.
Mr. Rajesh Lamba, Advocate and
Mr. P.K. Chugh, Advocate
for respondent no.1.
Mr. Abhinash Jain, DAG, Haryana
for respondent no.2.
KULDEEP TIWARI, J.(Oral)
1. Since both the petitions are preferred by the same petitioner,
namely Sunita, wherein, a common legal issue has been raised, therefore,
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being amenable for a common decision, same are being taken up together
for final disposal.
2. Through the instant revision petitions, challenge is thrown to
the verdict of conviction, and consequent thereto, order of sentence dated
08.01.2019, whereby, the learned Judicial Magistrate Ist Class, Hisar
(hereinafter referred to as 'the learned trial court concerned'), has
convicted the petitioner for commission of offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred
to as the 'N.I.Act'), in private complaint cases bearing
Nos.NACT/222/2017, and case no.NACT/197/2017 respectively, and,
sentenced her to undergo simple imprisonment for 01 year respectively,
with further direction to pay compensation of Rs.7,00,000/- and
Rs.10,00,000/-, respectively.
3. In addition, the petitioner has also assailed the verdict dated
06.05.2024, whereby, the learned Sessions Judge, Hisar, has dismissed
the statutory appeal filed by the petitioner, and upheld the verdict of
conviction and order of sentence (supra), which propelled the present
petitioner to file the instant revision petitions.
4. For sake of brevity the facts of the instant case are being are
being taken from CRR no.1062 of 2024, to adjudicate the legal issue as
raised by learned counsel for the petitioner.
5. At the very outset, learned counsel for the petitioner submits
without going into the merits of the case, that the petitioner is not
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assailing the verdict of conviction in both the revisions, as her
grievances is only with regard to the part of sentence awarded to her vide
order of sentence (supra) in both the petitions.
6. He further submits that the respondent no.1/complainant, in
the instant case, is the same person who has filed two different
complaints qua the cheques in question, and are arising out of same
transaction, as per the allegation, the petitioner had issued two cheques
(supra), in discharge of her loan liability towards respondent
no.1/complainant.
7. By referring to the judgment passed by this Court in the case
of "Manoj Jain vs. State of UT, Chandigarh and another" (in CRM-
M-44318-2022, decided on 14.06.2024), learned counsel for the
petitioner submits that in the instant matters, the convictions in both the
complaint cases arise out of a single transaction. Therefore, the learned
trial court concerned, ought to have considered the case of concurrence at
the time of pronouncing the order of sentence, however, that exercise has
not been done.
8. The submissions made by learned counsel for the petitioner
were opposed by learned counsel for respondent no.2/complainant. He
submits that the petitioner has rightly been convicted by the learned trial
court concerned, and there is no illegality or perversity in the verdicts of
sentence, which require any interference of this Court. However, he fairly
admits that both the cheques, qua which two different complaints (supra),
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has been filed by respondent no.2/complainant, arises out of a single
transaction.
9. Before embarking upon the legal submissions, as raised by
the learned counsel for the petitioner, it is apt to note the factual matrix
of the instant case.
10. Both the private complaints filed by respondent
no.2/complainant under Section 138 of the NI Act, the allegations which
were culled out by the learned trial court concerned, while passing the
verdict of conviction (supra), is extracted hereinafter:-
"The brief facts of the complaint are that Smt. Pushpa Rani
w/o Birbal, R/o Mamanpura, Hansi had borrowed a sum of 17 lacs
from the complainant on 20.2.2016 and she had mortgaged her land
with the complainant and executed an agreement to this effect in
which accused Sunita was also a witness. Complainant had arranged
said money after entering into an agreement to sell her shop, situated
in Rajguru Market, Hisar. Thereafter, accused and her mother
developed bad intention and started moving false applications to
Police refusing of having taken any loan or having executed any
agreement, which were found false by Police. It is averred that a
Panchayat was also convened at the house of complainant on
13.12.2016 in which, accused had admitted having taken loan
amount. Though amount was borrowed till 20.2.2021, but due to bad
intention of accused, complainant started convening Panchayats for
getting return her money. On 2.1.2017, a Panchayat was convened in
the presence of Rohtash s/o Sube Singh and Deepak s/o Krishan Dev,
in which, present accused had handed over two cheques and out of
which, one cheque bearing no.054656 dated 4.1.2017, amounting to 7
lacs, drawn on SBI, Mandi Road Branch, Hisar was issued by
accused in favour of complainant in order to discharge outstanding
legal liability of her mother namely Smt.Pushpa, with the assurance
that on its presentation for collection, it will be honoured. Believing
upon the assurance of accused, complainant presented the said
cheques in her Bank i.e. with BOI, Lahoria Chowk, Hisar for
collection of cheque amount, but it was dishonoured with remarks
"Funds Insufficient" vide memo date 5.1.2017. Thereafter,
complainant contacted the accused and requested for payment, but
she flatly refused to make any payment. It is further averred that a
legal notice dated 18.1.2017 was issued by the complainant to
accused calling her to making the payment of cheque within
stipulated period of 15 days from the receipt of notice, but despite
expiry of notice period, accused has not made the payment of cheque
in question. Hence the present complaint."
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11. The petitioner was summoned to face the trial for aforesaid
offence, and upon her appearance before the learned trial court
concerned, notice of accusation for the commission of offence
punishable under Section 138 of the NI Act, was served upon her, to
which she did not plead guilty and claimed trial.
12. Respondent no.2/complainant besides examining herself as
PW1 in after-charge evidence, also examined one Rohtash as PW2, to
substantiate the allegations as alleged in the instant complaints. Whereas,
the petitioner/accused while recording her statement under the provisions
of Section 313 Cr.P.C. took a defence that neither she, nor her mother,
had ever obtained any loan of Rs.17 lakhs from respondent
no.2/complainant, and furthermore her mother has never executed any
mortgage deed, in favour of the complainant. It was further pleaded by
petitioner/accused that the complainant is running a lottery system, and
she had obtained an amount of Rs.15 lakhs on interest from respondent
no.2/complainant, for joining the same, and at that time, she had handed
over a sale deed of the land of her mother alongwith two blank cheques to
respondent no.2/complainant, as a security. The petitioner/accused further
took a defence that the respondent no.2/complainant forged her signature,
and that of her husband, Vijay, on document Ex.C-1. She also denied the
factum of panchayat as alleged to have been held on dated 13.12.2016. In
defence, the petitioner/accused opted to examine three witnesses, namely
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Ram Kishan Khanna, Manager of Janta Dharamshala, Bhuna as DW-1,
Sandeep as DW-2 and Const.Gulab Singh as DW-3.
13. Learned trial court concerned, after considering the
submissions of rival parties, found the petitioner guilty for the
commission offence punishable under Section 138 of the NI Act.
Resultantly, she was convicted and sentenced vide judgment and order
(supra).
14. It is apt to note here that on the same facts an additional
complaint bearing no.NACT/197/2017, was also filed regarding the
second cheque, which was issued by the petitioner to respondent
no.2/complainant, arising out of same transaction, and the fate of the said
complaint was also the same, as the petitioner was held guilty by
recording the verdict of conviction and the order of sentence of the even
date (supra). Even the appeal, as preferred by the petitioner/accused, was
dismissed. The verdicts of the courts below, have also been assailed by
filing a separate petition bearing CRR no.1852 of 2024, which is also
being taken up together, for its disposal.
15. Before penning down any observation regarding the relief
sought for concurrence of sentence passed in two different complaint
cases (supra), it is deemed apt at this juncture, to make a survey study of
the relevant provisions of the Cr.P.C. i.e. Section 427 which deals with
the powers of the Court to impose a sentence upon a convict person
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which shall either run concurrently or consecutively. Section 427 of the
Cr.P.C.is reproduced hereunder:-
"427. Sentence on offender already sentenced for another
offence. --(1) 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 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."
16. A perusal of the hereinabove extracted Section reflects that it
endows discretionary power upon Court to, in a scenario where a convict
who is already undergoing a sentence of imprisonment, is sentenced on a
subsequent conviction to imprisonment or imprisonment for life, order
such subsequent sentence(s) to run concurrently or consecutively.
17. The nature and scope of Section 427 of the Cr.P.C. has been
elaborately discussed by the Hon'ble Supreme Court in "V.K. Bansal Vs.
State of Haryana and another", (2013) 7 Supreme Court Cases 211,
wherein, it has been held that no straitjacket formula can be laid down for
the Court to exercise its discretion under Section 427(1) of the Cr.P.C.,
rather such discretion has to be exercised along the judicial line and not
in a mechanical manner. The relevant portion of this verdict is reproduced
hereinafter:-
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"10. We are in the case at hand concerned more with the nature of
power available to the Court under Section 427(1) of the Code, which
in our opinion stipulates a general rule to be followed except in three
situations, one falling under the proviso to sub-section (1) to Section
427, the second falling under sub-section (2) thereof and the third
where the Court directs that the sentences shall run concurrently. It is
manifest from Section 427(1) that the Court has the power and the
discretion to issue a direction but in the very nature of the power so
conferred upon the Court the discretionary power shall have to be
exercised along judicial lines and not in a mechanical, wooden or
pedantic manner. It is difficult to lay down any straitjacket approach in
the matter of exercise of such discretion by the Courts. There is no cut
and dried formula for the Court to follow in the matter of issue or
refusal of a direction within the contemplation of Section 427(1).
Whether or not a direction ought to be issued in a given case would
depend upon the nature of the offence or offences committed, and the
fact situation in which the question of concurrent running of the
sentences arises."
18. In "Mohd. Zahid v. State", (2022) 12 SCC 426, the Hon'ble
Supreme Court has further interpreted the provisions of Section 427 of
the Cr.P.C. in the following terms:-
"Thus from the aforesaid decisions of this Court, the principles of law
that emerge are as under:
(i) if a person already undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to imprisonment, such
subsequent term of imprisonment would normally commence at the
expiration of the imprisonment to which he was previously sentenced;
(ii) ordinarily the subsequent sentence would commence at the
expiration of the first term of imprisonment unless the court directs the
subsequent sentence to run concurrently with the previous sentence;
(iii) the general rule is that where there are different transactions,
different crime numbers and cases have been decided by the different
judgments, concurrent sentence cannot be awarded under Section 427
Cr.P.C.;
(iv) under Section 427(1) of Cr.PC the court has the power and
discretion to issue a direction that all the subsequent sentences run
concurrently with the previous sentence, however discretion has to be
exercised judiciously depending upon the nature of the offence or the
offences committed and the facts in situation. However, there must be a
specific direction or order by the court that the subsequent sentence to
run concurrently with the previous sentence."
19. From these judicial dispensations of the Hon'ble Supreme
Court, two inferences are clearly surging forth that: (i) the general rule is
that different transactions, different crime numbers and different
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judgments create a constraint for awarding concurrent sentence under
Section 427 Cr.P.C.; and (ii) the convicting court is seized of
discretionary powers to issue a direction that subsequent term of
imprisonment shall either commence at the expiration of the previous
imprisonment, or, run concurrently with the previous sentence.
20. The precedent law laid down by various High Courts and by
the Hon'ble Supreme Court recognized the basic rule of conviction
arising out of a single transaction, for ordering concurrent running of
sentences awarded to offender. Gainful reference in this regard can be
made to "Mohd. Akhtar Hussain v. Collector of Customs
(Prevention)", (1988) 4 SCC 183, wherein, the Hon'ble Supreme Court
examined the issue relating to single transaction rule for concurrent
sentence and held as under:-
"10. The basic rule of thumb over the years has been the so-
called transaction rule for concurrent sentences. If a given
transaction constitutes two offences under two enactments
generally, it is wrong to have consecutive sentences. It is proper
and legitimate to have concurrent sentences. But this rule has no
application if the transaction relating to offences is not the same
or the facts constituting the two offences are quite different."
21. The above view was reiterated by the Hon'ble Supreme
Court in "State of Punjab Vs. Madan Lal", (2009) 5 Supreme Court
Cases 238.
22. Now, the issue arises that what would tantamount to a single
transaction for the Court to pass an order of concurrence of sentence
awarded to an offender. In order to simplify this issue and to make an
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answer thereto, reference can be made to the verdict rendered by the
Hon'ble Supreme Court in "State of Andhra Pradesh Vs. Cheemalapati
Ganeswara Rao and another", (1964) 3 SCR 297, whose relevant
portion is reproduced hereunder:-
"According to Mr. Chari Section 235(1) cannot be construed as
having an overriding effect on Section 239 because whereas it
contemplates acts so connected together as to form the same
transaction resulting in more offences than one, Section 239(d)
contemplates offences committed in the course of the same
transaction and nothing more. The question is whether for the
purposes of Section 239(d) it is necessary to ascertain anything
more than this that the different offences were committed in the
course of the same transaction or whether it must further be
ascertained whether the acts are intrinsically connected with
one another. Under Section 235(1) what has to be ascertained is
whether the offences arise out of acts so connected together as
to form the same transaction, but the words "so connected
together as to form" are not repeated after the words "same
transaction" in Section 239. What has to be ascertained then is
whether these words are also to be read in all the clauses of
Section 239 which refer to the same transaction. Section 235(1),
while providing for the joint trial for more than one offence,
indicates that there must be connection between the acts and the
transaction. According to this provision there must thus be a
connection between a series of acts before they could be
regarded as forming the same transaction. What is meant by
"same transaction" is not defined anywhere in the Code. Indeed,
it would always be difficult to define precisely what the
expression means. Whether a transaction can be regarded as the
same would necessarily depend upon the particular facts of
each case and it seems to us to be a difficult task to undertake a
definition of that which the Legislature has deliberately left
undefined. We have not come across a single decision of any
Court which has embarked upon the difficult task of defining the
expression. But it is generally thought that where there is
proximity of time or place or unity of purpose and design or
continuity of action in respect of a series of acts, it may be
possible to infer that they form part of the same transaction. It
is, however, not necessary that every one of these elements
should co-exist for a transaction to be regarded as the same. But
if several acts committed by a person show a unity of purpose or
design that would be a strong circumstance to indicate that
those acts form part of the same transaction. The connection
between a series of acts seems to us to be an essential ingredient
for those acts to constitute the same transaction and, therefore,
the mere absence of the words "so connected together as to
form" in Clause (a), (c) and (d) of Section 239 would make little
difference. Now, a transaction may consist of an isolated act or
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may consist of a series of acts. The series of acts which
constitute a transaction must of necessity be connected with one
another and if some of them stand out independently they would
not form part of the same transaction but would constitute a
different transaction or transactions. Therefore, even if the
expression "same transaction" alone had been used in Section
235(1) it would have meant a transaction consisting either of a
single act or of a series of connected acts. The expression "same
transaction" occurring in Clauses (a), (c) and (d) of Section 239
as well as that occurring in Section 235(1) ought to be given the
same meaning according to the normal rule of construction of
statutes. Looking at the matter in that way, it is pointless to
inquire further whether the provisions of Section 239 are subject
to those of Section 235(1). The provisions of sub-sections (2)
and (3) of Section 235 are enabling provisions and quite plainly
can have no overriding effect. But it would be open to the court
to resort to those provisions even in the case of a joint trial of
several persons permissible under Section 239."
23. Also, in "Balbir Vs. State of Haryana and another",
(2000) 1 Supreme Court Cases 285, it has been held that the test which
has to be applied to find out whether several offences are part of the same
transaction, is whether they are so related to one another in point of
purpose or of cause and effect, or as principal and subsidiary, so as to
result in one continuous action. The relevant portion of this verdict reads
as under:-
"For several offences to be part of the same transaction, the test
which has to be applied is whether they are so related to one
another in point of purpose or of cause and effect, or as
principal and subsidiary, so as to result in one continuous
action. Thus, where there is commonality of purpose of design,
where there is continuity of action, then all those persons
involved can be accused of the same or different offences
"committeed in the course of the same transaction."
24. On the touchstone of the above precedent laws, this Court
has examined the facts of the instant case.
25. It is not under dispute that both the cheques qua which two
different complaints have been filed, arise out of a single transaction, as
the petitioner is alleged to have given these cheques in discharge of loan
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liability. Therefore, this Court has no hesitation to hold that in the case in
hand, the order of convictions require interference.
26. A perusal of the instant impugned verdict of conviction
(supra), clearly reflects that the Court has not exercised its discretionary
powers endowed under the provisions of Section 427 of the Cr.P.C. In the
instant case, the convicting court has not considered about the previous
sentence, to ably exercise its discretionary powers under the provisions of
Section 427 of the Cr.P.C. In order to curb such irregularities this Court
has already given a common direction to all courts below in Manoj
Jain's case (supra). The relevant extract thereof, reads as under:-
39. A conjoint reading of the Sections reproduced hereinabove
reflects that the previous conduct of an accused is not permissible to be
brought on record until and unless the condition(s) embodied in Section
236 of the Cr.P.C. is fulfilled. Notably, in the trials launched for
commission of offence punishable under Section 138 of the N.I. Act, the
trial courts hardly inquire about accused's previous conduct before
passing the order of sentence, whereas, it is significant to do so to
exercise the discretionary power endowed by Section 427 of the Cr.P.C.
In the instant case, had the convicting courts inquired about the
petitioner's previous conviction and sentence either from the
prosecution or from the defence, it could have ably exercised its
discretionary jurisdiction under Section 427 of the Cr.P.C. Therefore, to
curb this irregularity and to avoid occurrence of any such situation, as
occurred in the cast at hand, this Court deems it apt to issue the
following directions to all the trial courts, which deal with the trials of
Section 138 of the N.I. Act:-
(i) In the event of a trial concluding in conviction of accused for
commission of offence punishable under Section 138 of the N.I.
Act, the trial court shall, before drawing the order of sentence,
adjourn the case, thus enabling the prosecution/ defence to
place on record material pertaining to previous conviction of
accused; (ii) On the adjourned date, the trial court shall draw
the order of sentence but by appending a note therein as to
whether any material pertaining to convict's previous conviction
is placed on record or not and if any such material is placed on
record, it shall within the legal parameters exercise the
discretionary power under Section 427 of the Cr.P.C.
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27. In the instant case, since both the cheques arise out of a
single transaction, therefore, in the touchstone of the above law, this
Court deems it appropriate to modify the order of sentence dated
08.01.2019, passed in complaint case no.NACT/222/2017, to the
extent that the sentence of simple imprisonment for 01 year awarded
to the petitioner, shall run concurrent with sentence awarded to her
vide order of even date in complaint case No.NACT/197/2017.
However, the order of sentence to pay compensation of Rs.7.00 lakhs
shall remain the same.
28. Ordered accordingly, and disposed of.
29. All pending application(s), if any, also stand disposed of
accordingly.
30. A photocopy of this order be placed on the file of the
connected case.
(KULDEEP TIWARI)
November 07, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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