Shyam Pal vs Dayawati Besoya And Anr

(3) The recorded facts divulge that the respondent No.1 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 House Court, New Delhi which were registered as C.C. No.407 of 2011 and C.C. No.430 of 2011 alleging that on 31.07.2008 the appellant had visited the residence of the complainant and had requested for a loan of Rs.5 lacs to meet his personal needs which he promised to return on 13.11.2009. On this, as the complaint reads, the respondent/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 of Rs.5 lacs to him as loan on that date, by somehow arranging the same.

(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, Arnar Colony, New Delhi. Both these cheques when presented at the appropriate time, were dishonored with the remarks “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 centered around the sentence alone, we do not wish to burden the present rendering with avoidable facts.

(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 in revision.

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 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 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 one transaction. This deduction understandably is in the singular facts of the case.

Understandably, the appellant was required to serve the default sentence as awarded with the direction that if the fine imposed had not been deposited, the default sentence or sentences would run 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 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.

(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, if the fine by way of compensation, as imposed, has not been paid by him. The appeals are 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.

OCTOBER 28, 2016.