IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1454/2018 BETWEEN:
SRI. S. KAMAKOTI S/O MR. V. SANKARAN AGED ABOUT 52 YEARS R/AT NO.191/96-A KUPPUSAMY SALAI ANNAI INDIRANAGAR PONNERIKKARAI KANCHIPURAM - 631 501.
PRESENTLY AT NO.169/4 GOWRI SALAI, INDIRANAGAR KANCHIPURAM – 631 502.
... PETITIONER (BY SRI. PRAKASH GOKLANEY., ADVOCATE FOR SRI. RAMESHA C.N., ADVOCATE) AND:
SRI. I. SARFARAZ NAWAZ S/O LIYAS AGED ABOUT 39 YEARS MAIMUNA BAGH BASTHPADAPPU VILLAH MANGALORE – 575 001.
... RESPONDENT (BY SRI. ARUNA SHYAM M., ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:18.12.2017 IN C.C.NO.642/2016 ON THE FILE OF THE V JMFC, MANGALORE.
THIS PETITION HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY COURT MADE THE FOLLOWING:
O R D E R Respondent has filed six (6) complaints under Section 200 Cr.P.C. r/w Section 138 of Negotiable Instruments of Act, 1881 (for short 'NI Act') alleging that petitioner herein was paid in all a sum of `91,35,000/- between 12.01.2013 ending with 05.03.2014 as hand loan and for repayment of said loan accused had issued six (6) post dated cheques between the dates 21.10.2014 to 26.10.2014, which came to be presented for collection by the complainant and was returned by banker on the ground of "stop payment" and separate notices for each of the cheques issued came to be received by the accused and an untenable reply has been sent by the accused. Thus, in all six (6) complaints came to be filed as noted hereinabove in C.C.Nos.642/2017, 643/2017, 644/2017, 645/2017, 646/2017 and 647/2017. Hence, alleging that accused has committed an offence punishable under section 138 of NI Act, complainant sought for accused being punished.
2. During the pendency of proceedings before trial Court a memo came to be filed by complainant on 18.12.2017 to club all the cases together and to have a joint trial. In fact, counsel for accused has submitted no objection to the memo filed by complainant for being allowed. In this background, learned trial Judge held that complainant and accused are one and the same in all the cases and as such to avoid to multiplicity of proceedings memo filed by the complainant deserves to be allowed and accordingly allowed the same by order dated 18.12.2017. Same is under challenge in this petition.
3. I have heard the arguments of Sri.Prakash Goklaney, learned counsel appearing on behalf of Sri.Ramesh C.N., for petitioner and Sri. Suyog, learned counsel appearing on behalf of Sri.Aruna Shyam for respondent.
4. It is the contention of Sri. Prakash Goklaney, learned counsel appearing for petitioner that either in Cr.P.C. or in Negotiable Instruments Act any provision being available for clubbing six (6) cases together. He would also contend that transaction in question even according to complainant arose out of 14 transactions and as such complainant has filed six (6) different complaints and question of holding a joint trial would not arise. He would also submit that learned Magistrate erred in arriving at a conclusion that clubbing of all the cases, ignoring the fact that clubbing of all the cases would prejudice the right of petitioner and interest of accused ought to have taken care of. Hence, order of learned Magistrate would cause serious prejudice to the petitioner and prays for allowing the petition by relying upon the following judgments:
(i) CRL.M.C.No.646/2008 & CRL. M.A. No.2412/2008: HITESH NAGPAL vs. STATE AND ANOTHER (ii) 2007 Crl.L.J. 3958: KERSHI PIROZSHA BHAGVAGAR vs. STATE OF GUJARAT AND ANOTHER (iii) CRL.MISC.(PET) No.942/2018: JAGMOHAN AND OTHERS vs. STATE AND ANOTHER (iv) CRIMINAL MISC. PETITION No. 2433/2009: UMRAO MAL CHORDIYA vs. ASSAM ROLLER FLOUR MILLS LTD.
(v) CRL. R.C.No.3/2015 AND M.P.NO.1/2015: MOHAMMED KASIM vs. K.RAYAPPAN (vi) CRL.O.P.No.21432/2002: MANJULA vs. M/S. COLGATE PALMOLIVE (INDIA) LTD.
(vii) CRL.A.Nos.701-729/2007: M/S.AGATE FINANCE LIMITED vs. M/S.L.S.P.AGRO LIMITED AND ANOTHER (viii) CRIMINAL PETITION No.291/1998: TIRUCHANDOOR MURUHAN SPINNING MILLS (P) LTD. vs. MADANLAL RAMKUMAR COTTON AND GENERAL MERCHANTS 5. Per contra, Sri. Suyog, learned counsel appearing for respondent would support the order passed by trial Court by vehemently contending that impugned order has been passed by consent and as such, no petition would lie for challenging the same and also on the ground that no prejudice would be caused to accused if all the cases are tried together, since parties are same, transactions are identical and cheques in question having been issued for the similar transactions. Hence, he prays for dismissal of petition.
6. Having heard the learned Advocates appearing for parties and on perusal of records foundational facts emerging in the instant case are:
(i) Complainant is said to have paid a total sum of `91,35,000/- between 12.01.2013 to 05.03.2014 to the accused;
(ii) Vide paragraph 3 of the complaint it is admitted that "such payment" arose out of 14 transactions;
(iii) A sum of `1,09,44,053/- was alleged to be due with interest and accused is said to have issued three (3) cheques for a sum of `25,00,000/- each dated 05.03.2014 and same had been returned;
(iv) For repayment of above loans six (6) cheques drawn on HDFC Bank, Kancheepuram Branch, came to be issued and was returned with endorsement "stop payment";
(v) Complainant has issued six (6) separate notices for each of the cheques;
(vi) Complainant has presented six (6) complaints.
Thus, it would emerge from the above summary that complainant has undisputedly had received six (6) cheques dated 21.10.2014, 22.10.2014, 23.10.2014, 24.10.2014, 25.10.2014 and 26.10.2014 for a sum of `9,45,000/- and `5,00,000/- each respectively. The said cheques having been presented by the complainant for encashment through his bank i.e., Indian Overseas Bank, Bunder Branch, Mangalore, same has been returned with endorsement "stop payment". Hence, complainant has filed six (6) complaints under Section 200 of Cr.P.C. r/w Section 138 of NI Act as already noticed hereinabove.
7. Section 219 of Cr.P.C. has been pressed into service by learned counsel appearing for petitioner as well as respondent and it reads as under:
"219. Three offences of same kind within year may be charged together.-
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law:
Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
However, it would be apt and appropriate to take note of Sections 218 and 220 of Cr.P.C. also, which would have bearing in the instant case and they read:
"218. Separate charges for distinct offences.-- (1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223."
"220. Trial for more than one offence.-- (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence failing within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860)."
8. A plain reading of Section 218 of Cr.P.C. would indicate that for every distinct offence there shall be a separate charge/allegation and every such charge or allegation is to be tried separately. Thus, general principle is, one single offence, one charge and one trial. However, this cannot be the rigid rule by universal application. The proviso to Section 218(1) of Cr.P.C. would indicate in the event of an application in writing is made by an accused desiring and the Magistrate is of the opinion that such accused is not likely to be prejudiced, may try together all or any number of charges framed against such accused in one trial. Section 219(1) of Cr.P.C. refers to identical offences committed on different dates within a span of 12 months from the first to the last of such offences, provision permits joinder of those charges "provided they are offences of the same kind".
9. However, a bare reading of Section 220 of Cr.P.C. would indicate that it deals with a different situation. It deals with trial for more than one offence and provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. In the present case, accused is alleged to have given six (6) cheques of different dates and it is clearly admitted by the complaint that hand loans were given by the complainant to accused between 12.01.2013 to 05.03.2014. Complainant further admits that in all he had paid accused a sum of `91,35,000/- and it arose out of 14 transactions. Thus, it would emerge from the facts on hand that cheques issued was for different transactions or in other words, unity of action is conspicuously absent.
10. A harmonious construction of Sections 219 and 220 of Cr.P.C. would indicate that legislative intent is that in one complaint the accused can be proceeded against for dishonour of maximum of three cheques and for offences committed in respect of more than three cheques, a separate complaint has to be registered and consequently tried. In other words, if more than three cheques are issued relating to same transaction, then considering the purpose, sequence, sequence of events, nature of allegation, proximity of commission and unity of action, can be tried by filing one complaint. Thus, essential requirement or parameter would be the commonness or it should arise out of same transaction. It all depends on facts and circumstances of each case and no straight jacket formula can be prescribed in this regard.
11. In the instant case, at the cost of repetition, it requires to be noticed that six (6) cheques were issued for alleged repayment of loan borrowed by the accused on different dates i.e., between 12.01.2013 and ending with 05.03.2014. The defence which may be available to accused, may be distinct and separate. Even according to complainant said payment is said to have arisen on account of 14 transactions. In that view of the matter, if the complaints are clubbed together and common trial held, it would definitely prejudice the right of petitioner.
12. A plea has been raised by learned counsel appearing for respondent that accused had consented for clubbing of cases and as such he cannot maintain the present petition. It is trite law, that consent would not confer jurisdiction. In a quasi criminal proceedings, procedure of trial adopted to the determinant of accused, cannot be a ground to stifle the right of accused for a fair trial. In that view of the matter, said contention cannot be accepted.
13. For the aforestated reasons, I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Order dated 18.12.2017 passed by JMFC-V, Mangalore, in CC No.642/2016 (PCR No.106/2016) by allowing the memo dated 18.12.2017 and ordering C.C.Nos.643/2017, 644/2017, 645/2017, 646/2017 and 647/2017 to be merged with C.C.No.642/2016 by leading common evidence is hereby set aside.
(iii) Jurisdictional Magistrate is directed to hold independent trial in these cases and to hold simultaneous trial after affording sufficient opportunity to parties and dispose of each case by means of separate judgment in accordance with law within two (2) months subject to both parties cooperating with trial Court. It is also made clear that learned Magistrate would be at liberty to regulate the said proceedings by putting the parties on terms.
SD/-
JUDGE DR