Madras High Court
K.Vivekananda Reddy Katama vs Rahul Nambiar on 26 August, 2022
CRL.O.P.No.6275 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.06 .2022
PRONOUNCED ON : 26.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA
KURUP
Crl.O.P.No.6275 of 2021
and
Crl.M.P.No.4140 of 2021
1.K.Vivekananda Reddy Katama
2.Hema Katama ...Petitioners/Accused Nos.1 &
2
-Vs-
Rahul Nambiar ... Respondent/Complainant
Prayer: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, to call for the records relating to the case in
C.C.No.5447 of 2020 pending trial on the file of the Fast Track Court No.1,
Metropolitan Magistrate, Allikkulam, Egmore and quash the same with
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CRL.O.P.No.6275 of 2021
regard to this Petitioners.
For Petitioners : Mr.K.G.Senthilkumar
For Respondent : Mr.V.Vignesh
ORDER
This petition had been filed to call for records relating to the case in C.C.No.5447 of 2020 pending trial on the file of the Fast Track Court No.1, Metropolitan Magistrate, Allikkulam, Egmore and quash the same with regard to the Petitioners.
2. The Learned Counsel for the Petitioners submitted that this petition is filed by the Petitioners seeking to quash the criminal complaint in C.C.No.5447 of 2020 pending on the file of the Learned Metropolitan Magistrate, Fast Track Court No.I, Allikulam, Egmore.
3. It is the contention of the Petitioners that the first Petitioner 2/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 borrowed a sum of Rs.30,00,000/- from the Respondent herein, for which, he had issued cheques signed by him. The second Petitioner stood as Guarantor/co-applicant and also issued cheque to the Respondent. When the Petitioners failed to repay the amount, the Respondent had deposited the cheques issued by the Petitioners 1 & 2 separately, which was returned with an endorsement "Funds Insufficient" and hence, the Respondent filed a complaint. Though the complaint arise out of the same transaction, but it is a separate cheque maintained by two individuals and hence a single complaint is not maintainable. Therefore, the Learned Counsel for the Petitioners sought to dismiss the complaint in C.C.No.5447 of 2020 pending on the file of the Learned Metropolitan Magistrate, Fast Track Court No.I, Allikulam, Egmore, stating that it can only be joinder of charges and not joinder of accused. Therefore, the Petitioners sought to quash the complaint in C.C.No.5447 of 2020 on the file of the Learned Metropolitan Magistrate, Fast Track Court No.I, Allikkulam, Egmore.
4. The Learned Counsel for the Respondent vehemently 3/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 objected to the line of arguments of the Learned Counsel for the Petitioners stating that the petitioners' individual cheques were presented and the same were returned as “insufficient funds.” Accordingly, he has filed a criminal complaint in C.C.No.5447 of 2020. If both the Petitioners had issued the cheque on the same day and the cheques were dishonoured, therefore, cause of action arose against the Petitioners.
5. The Learned Counsel for the Petitioners relied on the notice sent by the Petitioners herein, which clearly mentioned the fact that both were not presented on the same day.
6. The Learned Counsel for the Respondent relied on the following rulings:-
1) In Sappani @ Murugesan Vs. The State rep.by the Inspector of Police, Abiramam Police Station, Abiramam, Ramanathapuram District, in Criminal Appeal (MD).Nos.355, 352 of 4/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 2020, 27, 29 of 2021, 25, 153, 257 and 258 of 2022, dated 29.04.2022, the relevant portion are at para Nos.12 & 13 which are extracted hereunder:
"12. ......Recently, in Nasib Singh vs. State of Punjab and another reported in (2022) 2 SCC 89, the Hon'ble Supreme Court had dealt with the scope of Section 223(a) to (g) and proviso to Section 223 and treated Sections 219 to 221 as exceptions to the rule enumerated under Section 218 of Cr.P.C. Though separate trials is a norm, the provisions of Sections 219 to 221 and Section 223 serve as an exception to the norm. The Hon'ble Supreme Court while examining the scope of conduct of joint trial in a criminal case, had held that while applying the principles enunciated in Sections 218 to 223, the Court must apply a two pronged test namely,
(i) whether conducting a joint/separate trial will prejudice the defence of the accused, and/or (ii) whether conducting a joint/separate trial would cause judicial delay. The Hon'ble Supreme Court had formulated the following principles with reference to conduct of joint trial and also separate trials:-
''51. From the decisions of this Court on joint trial and separate trials, the following principles can be formulated:5/16
https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 51.1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 - 221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied.
51.2. While applying the principles enunciated in Sections 218 - 223 on conducting joint and separate trials, the trial court should apply a two-
pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay. 51.3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a 6/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix.
51.4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice.
51.5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.''
13. In the present cases, there are two crimes committed at around the same time by the same set of persons. Section 223(d) empowers or provides for conduct of joint trials in case of persons accused of different offences committed in the course of the same transaction. In the cases on hand, the accused persons have been charged with offences 7/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 under Section 302 in respect of SC.No.27/2007 and Section 307 read with of course the other provisions of IPC in S.C.No.28/2007. The same persons are accused of different offences committed in the course of the same transaction. Therefore, the Sessions Court could have done well to atleast conduct a joint trial for the two sessions cases which would have resulted in the mishap that has occurred in marking of documents and non marking of documents in the cases on hand."
2) In Manjula Vs. Colgate Palmolive (India) Limited, in Crl.O.P.No.21432 of 2002, reported in MANU/TN/2780/2006, the relevant portion at para Nos. 12 to 16 which are extracted hereunder:
"12. The above said 16 cheques were drawn on different dates and they were for different amounts, but, they were presented together for payment and were dishonoured and a single notice was sent by the complainant to the drawer. The general rule is that every distinct offence of which a person is accused, there shall be separate charge and every such charge shall be 8/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 tried separately. As observed by the Division Bench of the Kerala High Court in 1996 (3) Crimes 283 (cited supra), Section 219 Cr.P.C. is an exception to the general rule. As stated earlier, even though different cheques were given on different dates, the presentation of all those cheques formed the same transaction. Further, the demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands for the payment of the dishonoured cheques. In those circumstances, we are of the view that the petitioner/accused herein may be charged and tried at one trial for several such offences, because, the series of acts are so inter-linked or inter-
connected.
13. The very object of Section 219 is to prevent miscarriage of justice by clubbing together a number of offences and making it impossible for the accused to defend them. Sections 219 and 220 Cr.P.C. lay down different and distinct exception to the general rule contemplated under Section 218 Cr.P.C. in framing charges. We are of the view that the number of three offences underlined in Section 219 of the Code cannot control Section 220(1) of the Code.
14. In the instant case, the offences committed by the same 9/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 person in respect of 16 cheques must certainly be held to be part of the same transaction considering the purpose, the sequence, events, nature of the allegation, proximity of commission, unity of action etc. In such circumstances, it is easy to conclude that the offences under Section 138 of the Act in respect of those cheques can be held to be offences committed in the course of same transaction. Section 219 (1) Cr.P.C. refers to identical offences committed on different dates during a span of 12 months. It permits joinder of those charges provided they are offences of the same kind.
15. In these circumstances, we hold that Section 219(1) Cr.P.C. permits joinder of all charges provided they are offences of the same kind. We are also of the view that the number of transactions and the cheques issued prior to the issuance of the statutory notice under Section 138(b) of the Act could at best be considered as bundle of facts giving rise to a cause of action and that it is not a ground to quash the criminal proceedings against the drawer of the cheques. We further hold that if the offences are of the same kind, the number of transactions between the parties which culminated into issuance of the statutory notice is no ground to urge that under Section 219 Cr.P.C., the prosecution laid against the 10/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 petitioner is not maintainable.
16. In the case on hand, though the act of issuance of 16 cheques was on different dates, in view of the fact that a demand was made by issuing a common notice, the complaint cannot be said to be vitiated. To put it clear, though the giving of cheques by the accused to the complainant may be on different dates, all those acts of giving those cheques were merged together to form the same transaction viz., the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands, we are of the view that the accused may be charged and tried at one trial for several such offences because the series of acts are so inter- linked or inter-connected together so as to form the same transaction of dishonouring the cheques, therefore, it cannot be said that the complaint is vitiated."
3) In Rajini Chandra and Ors. Vs. State of Andhra Pradesh and Ors., in Criminal Petition No.2640 of 2009 reported in MANU/AP/0744/2010, the relevant portion at para Nos.11, 21 and 24 11/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 which are extracted hereunder:
"11 Now the point that arises for consideration is whether in the present set of circumstances, where there are two cheques issued by two different persons a single complaint is maintainable?
.....
21. In the present case, the facts fall within sub-section (e) of Sec.223 of the Code, as here both the petitioners have allegedly committed the same offence in the course of same transaction, as the transaction arises out of a land dealing for which advance was paid, as per the complainant, after settlement, the cheques were issued by both the accused, not only on their behalf, but on behalf of other members of the family towards discharge of a legally enforceable debt. Thus legally it is the same offence committed in the course of same transaction. The present case may also fall within section 223
(c), as per which Persons accused of more than one offence of the same kind, within the meaning of S.219 committed by them jointly within the period of twelve months can be tried jointly.
....
24. In all these circumstances, it has to be held that in the 12/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 present case there is no illegality in holding a joint trial."
7. The learned counsel for the respondent relied on the above decisions and submitted that this Criminal Original Petition seeking for quashing of the criminal proceedings on the ground that two complaints ought to have been filed, instead of filing a single complaint for the dishonour of the cheque committed by the petitioners herein/accused 1 and 2, has to be dismissed.
8. The Learned Counsel for the Petitioners also relied on the fact that the Respondent had proceeded Arbitration, whereby the Arbitrator/ District Judge (Retd.) had passed orders in Arbitration Claim Petition No.1 of 2020, directing the Respondent to pay the claimant of Rs.25,83,232/- with interest at 12% and Rs.91,873/- towards costs to the claimant. When the civil case is pending, the criminal case in C.C.No.5447 of 2020 is not maintainable, hence the same has to be quashed.
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9. Considering the rival submissions, the contention of the Petitioners that the criminal complaint pending on the file of the Learned Metropolitan Magistrate, Fast Track Court No.I, Allikulam, Egmore, that the two individuals, who are alleged to have issued cheques, the Petitioners herein had been arrayed as Accused and there is nothing wrong in filing a complaint for joint liability in the light of the reported ruling in Manjula Vs. Colgate Palmolive (India) Limited, in Crl.O.P.No.21432 of 2002 [MANU/TN/2780/2006] and Rajini Chandra and Ors. Vs. State of Andhra Pradesh and Ors., in Criminal Petition No.2640 of 2009 [MANU/AP/0744/2010]. The contention of the Learned Counsel for the Petitioners seeking to quash the complaint under 138 Negotiable Instruments Act, is found unacceptable and hence rejected. In the light of the above discussion this Revision Petition is dismissed.
In the result, this Criminal Original Petition is dismissed.
The Learned Metropolitan Magistrate, Fast Track Court No.I, Allikulam, Egmore, is directed to proceed with the trial and dispose of the 14/16 https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 same within a reasonable period of three months from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed.
26.08.2022 Index:Yes/No Internet:Yes/No dna To:
The Metropolitan Magistrate, Fast Track Court No.I, Allikkulam, Egmore.15/16
https://www.mhc.tn.gov.in/judis CRL.O.P.No.6275 of 2021 SATHI KUMAR SUKUMARA KURUP,J., dna Pre-Delivery Order made in Crl.O.P.No.6275 of 2021 and Crl.M.P.No.4140 of 2021 26.08.2022 16/16 https://www.mhc.tn.gov.in/judis