Delhi District Court
M/S Iris Computers Ltd. vs . M/S S.D. Infosys & Ors. on 1 June, 2015
IN THE COURT OF SH. AKASH JAIN, LD. MM06,
PATIALA HOUSE COURT, NEW DELHI DISTRICT, NEW DELHI.
CC No. 157/01/14
M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors.
01.06.2015
ORDER
1.Vide this order, I shall dispose of the present application under Section 210 (2) read with 220 (3) Cr.P.C. moved on behalf of accused persons for staying the proceedings of the present case and conducting joint trial of present case along with other pending cases as mentioned hereinbelow.
2. It is argued on behalf of accused that following complaint cases under Section 138 NI Act, i.e. (i) M/s Micro Clinic India Pvt. Ltd. vs. Sushil Chawla & Ors. CC No.269/01/14, (ii) Salora International Vs Symentic Infoysis Pvt. Ltd. bearing CC No.314/01/12, (iii) Ingram Micro India Vs. M/s SD Infoysis bearing CC No.121/01/14 and the present case along with one state case FIR No.56/12 dated 16.05.2012, PS EOW are pending trial against accused persons at the behest of complainant who is also witness in above case FIR No.56/12.
3. It is argued by Ld. Counsel for accused persons that vide orders dated 11.03.2014 and 03.07.2014 Hon'ble Delhi High Court had been pleased to transfer all the abovesaid matters pending trial before different courts in different districts, to be heard by this single court to CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 1 of 9 avoid undue delay and harassment caused to the parties due to multifarious litigation between them. It is argued that subject matter of present complaint case is same as that of FIR in question as mentioned above, as such, in terms of Section 210 (2) Cr.P.C. the present case proceedings are required to be stayed and all the cases as mentioned above are to be tried together as one matter in terms of Section 220 (3) Cr.P.C.. In support of his arguments Ld. Counsel for accused persons relied upon the following judgments:
(i) State Vs Har Narain, 1976 Cri. L.J. 562;
(ii) Joseph Vs Joseph, 1982 Cri. L.J. 595;
(iii) Abdul Hamid & Ors. Vs State of Tripura, 1958 (59) Cri. L.J. 253;
(iv) A.K. Jajodia Vs State, Crl.Rev.P737/2007M dated on 27.05.2009;
(v) G. Sri Hari Vs Nandkishore Lahoti, 2003 Cri. L.J. 643;
(vi) Ramrattan Vs State of Haryana, 2004 Cri.L.J. 3617;
(vii) State of Andhra Pradesh vs Cheemalapati Ganeshwara Rao & Anr., 1963 (2) Cri. L.J. 671;
(viii) Gulshan Kumar Ahuja Vs Veena Sharma, 107 (2003) DLT, 725;
(ix) Kolla Veera Raghav Rao Vs Gorantla Venkateshwar, 2011 (2) SCC 703;
(x) Smarty Machera & Arn. Vs State, 2007 (2) JCC 1570;
(xi) Kimti Lal Jain Vs State, 2009 (107) DRJ 683.
4. It is further prayed on behalf of accused persons that joint trial of abovementioned cases would save precious judicial time as, in all the cases documents required to be produced and witnesses required to be summoned are quite similar. It is further prayed that multiple trials would cause serious prejudice to the accused persons as all the cases are at different stages which may result in disclosure of defence of accused persons first hand to the complainant. It is further prayed that joint trial of CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 2 of 9 all the matters would facilitate expeditious disposal of the cases as the same witnesses and documents would not have to be summoned and examined again and again.
5. On the other hand, it is argued on behalf of complainant that the contentions made on behalf of accused persons that the accused and complainants are same in all the pending cases and that the proceedings have arisen from same cause of action/transaction are misconceived and illfounded. It is argued that the complainants in each abovementioned cases pending between the parties are different entities pertaining to different transactions with the accused. It is argued that different cheques of distinct amounts were separately issued to each of the complainants by the accused, the case of each complainant is distinct, the cheques were dishonoured at different dates and different cause of action arose in different cases. It is argued that as per Section 218 Cr.P.C., for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. It is further argued that Section 218 Cr.P.C. is a mandatory provision and Section 219/220 Cr.P.C. are just an enabling provision subject to Section 218 Cr.P.C. and accused cannot seek as a matter of right clubbing of complaints against them.
6. With respect to section 210 (2) Cr.P.C. regarding stay of proceedings of the present complaint in lieu of pendency of case FIR No.56/12, PS EOW, it is argued on behalf of complainant that the accused persons are being prosecuted for offences under Section 420/471 IPC in abovementioned FIR which are distinct offences from CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 3 of 9 that of section 138 NI Act which is a technical offence requiring summary trial. It is argued that offences under Section 138 NI Act and Section 420 IPC may arise out of same or over lapping set of events, they are essentially different events and cannot be tried together. In support of their arguments counsel for complainant relied upon the following judgments:
(i) Sangeetaben Mahindrabhai Patel Vs State of Gujarat & Anr., Crl. Appeal No. 645/2012 decided on 23.04.2012;
(ii) S.B. Easwar @ R. Easwar & Anr. Vs B.C. Kesava Murthy, Crl.
O.P. No.22881 of 2013 decided on 29.10.2014;
(iii) R.P. Mathur Prop. Radhika Leather Fashion Vs S.R.P. Industries Ltd., 2009 (2) JCC (NI) 73;
(iv) State of NCT of Delhi Vs Sanjay, 2014 (10) Scale 166;
(v) M/s Nova Visim Electronics vs. State & Anr., Crl. M.C. No.3773/2008 decided on 15.07.2009.
7. It is finally argued on behalf of complainant that staying of proceedings of the present case and clubbing all the matters as mentioned above in terms of Section 220 (3) Cr.P.C. would infact result in prolonging of trial and would cause grave injustice to the complainant as few of the matters sought to be clubbed by the accused persons are already at the advance stage of defence evidence.
8. Arguments heard. Record perused in entirety.
9. Before deciding the contentious issues in hand, this court deems it expedient to refer to the statutory provisions i.e. Section 210 and 220(3) Cr.P.C. as under:
"...........Section 210. Procedure to be followed CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 4 of 9 when there is a complaint case and police investigation in respect of the same offence. (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry, or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating agency police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint, case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provision of this Code."
"..........Section 220 Trial for more than one offence (1)************* (2)************* (3) If the acts alleged constitute an offence falling 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 offendes."
(4)*************** (5)*************** .........."
10. With respect to prayer under Section 210 (2) Cr.P.C., it is imperative to refer to judgment of Hon'ble Supreme Court in CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 5 of 9 Sangeetaben Mahindrabhai Patel Vs State of Gujarat & Anr., Crl. Appeal No. 645/2012 wherein it was held as under:
" .............27. Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the instant case, he is involved under Section 406/420 read with Section 114 IPC. In the prosecution under Section 138 N.I. Act,the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I. Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I. Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary......"
11. It is further pertinent to refer to the case of judgment State of Bihar Vs Murad Ali Khan, 1988 4 SCC 655, wherein it was held by Hon'ble Supreme Court that:
"......... Even if the jurisdictional police purported to register a case for an alleged offence against the Act, Section 210 (1) would not be attracted as cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognizance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to the same offence, CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 6 of 9 the two cases do not lose their separate identities. The section seeks to obviate the anomalies that might arise from taking cognizance of the same offence more than once. But, where, as here, cognizance can be taken only in one way and that on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and, accordingly, Section 210 has no role to play......."
12. Having perused the material and record, submissions made on behalf of both the parties and legal propositions discussed above, this court is of the view that section 210 (2) Cr.P.C. would not be attracted in the facts of the present case as cognizance of offence u/s 138 of NI Act can only be taken on a complaint filed by the payee or the holder in due course of the cheque. This ingredient of offence u/s 138 of NI Act does not form part of offence under Section 420 IPC as both of them are distinct offences. Staying of proceedings of the present case and clubbing it with the state case FIR No.56/12, PS EOW would cause grave prejudice to the complainant and lead to unwarranted chaos as most of the complainants in cases sought to be clubbed together are distinct entities with respect to distinct cheques drawn on different dates pertaining to different transactions. Relief sought under Section 210 (2) Cr.P.C. on behalf of accused persons is thus, declined.
13. With respect to relief under Section 220 (3) Cr.P.C. sought by the accused persons for conducting of joint trial of present case with the cases as mentioned in para 2 of this order, it may be noted that witnesses/AR of complainants in all the four complaint cases under Section 138 NI Act, sought to be clubbed by the accused persons are different. Further, the cheques which are subject matter of aforesaid CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 7 of 9 complaints are different and the accounts in which those cheques had been presented are also different. In cases of Section 138 of NI Act, certain statutory presumptions are raised in favour of complainant and complainant/AR of complainant is the primary witness on whose testimony, the entire case is based upon. In all the four complaint cases sought to be clubbed by the accused persons, the AR of complainants are different who had filed separate affidavits to prove their cases. Therefore, it cannot be said that evidence in all the cases is similar. All the complainant's witnesses would have to be cross examined separately by Ld. Counsel for accused persons to rebut the statutory presumptions raised against the accused persons. Thus, joinder of trial of aforementioned cases in terms of Section 220 (3) Cr.P.C. would defeat the very purpose of reducing delay in disposal of the cases. It would infact cause confusion and further delay in disposal of the complaint cases.
14. The contention of Ld. Counsel for accused persons, that if the accused persons disclose their defence in one case it will prejudice their case in another complaint, does not inspire confidence. It is well settled that in the cases under Section 138 of NI Act, right at the time of framing of notice against the accused, he has to disclose his defence and only if he raises a plausible defence, he is allowed to crossexamine complainant witness. Therefore, even if the defence of the accused is disclosed before hand, it will not prejudice his case.
15. As per Section 218 Cr.P.C. for every distinct offence of which any person is accused there shall be a separate charge and every such CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 8 of 9 charge shall be tried separately. Section 218 uses the word 'shall' whereas Section 220 uses the word 'may'. It is not in dispute that when the court is of the opinion that the joinder of the trial in two cases is expedient for the proper conduct of the trial and the joinder will not prejudice the case of the accused, the court may direct that trial in both the cases may be conducted jointly. However, it is to be kept in mind that separate trial is a rule and joinder of trial is an exception and the joinder of the trial is to be directed only where it will help in expeditious disposal of the case.
16. The contention of Ld. Counsel for accused persons that separate trial in the cases would cause hardship to the accused persons also do not hold any merit as all the cases are pending in the same court and as far as possible the same are taken up on the same dates of hearing. Therefore, conduct of trials in the cases separately will not prejudice the accused persons and will not cause hardship to them.
17. Keeping in view the material on record and aforesaid observations, this court is of the view that separate trial in the cases will not prejudice the case of the accused in fact if the trials in the cases are joined it is likely to cause further delay in the matter. Accordingly, relief under Section 220 (3) Cr.P.C. is also declined.
Application of accused persons disposed of accordingly.
(Akash Jain) MM06/PHC/ND/01.06.2015 CC No.157/01/14 M/s Iris Computers Ltd. Vs. M/s S.D. Infosys & Ors. Page 9 of 9