Karnataka High Court
M/S Shanthi Fortune(India) Ltd vs M/S Mukka Sea Foods Industries on 10 September, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
®
BANGALORE
DATED THIS THE 10TH DAY OF SEPTEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.231 OF 2014
CONNECTED WITH
CRIMINAL REVISION PETITION No.232 OF 2014
CRIMINAL REVISION PETITION No.233 OF 2014
CRIMINAL REVISION PETITION No.234 OF 2014
CRIMINAL REVISION PETITION No.235 OF 2014
CRIMINAL REVISION PETITION No.236 OF 2014
CRIMINAL REVISION PETITION No.237 OF 2014
CRIMINAL REVISION PETITION No.238 OF 2014
CRIMINAL REVISION PETITION No.239 OF 2014
CRIMINAL REVISION PETITION No.240 OF 2014
CRIMINAL REVISION PETITION No.241 OF 2014
CRIMINAL REVISION PETITION No.242 OF 2014
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CRIMINAL REVISION PETITION No.243 OF 2014
CRIMINAL REVISION PETITION No.244 OF 2014
CRIMINAL REVISION PETITION No.245 OF 2014
CRIMINAL REVISION PETITION No.246 OF 2014
CRIMINAL REVISION PETITION No.247 OF 2014
CRIMINAL REVISION PETITION No.248 OF 2014
BETWEEN:
1. M/s. Shanthi Fortune (India)
Limited, a Private Limited Company,
Represented by its Managing Director,
R.Krishnamurthy,
Address: Office at 38,
Trichy Road, Palldam - 641 664,
Tamilnadu.
2. Krishnamurthy,
53 years,
Son of Late Ramaswamy,
Managing Director of
M/s. Shanthi Fortune (India)
Limited,
Address: Office at 38,
Trichy Road, Palldam - 641 664,
Tamilnadu.
...PETITIONERS
COMMON
(By Shri. Chandraiah, Advocate)
3
AND:
M/s. Mukka Sea Foods Industries,
A registered Partnership Firm,
Represented by its Partner-
K. Mohammed Althaf, 29 years,
Son of K. Abdul Razak,
Having its office at 1st Floor,
Trinity Complex,
N.G.Road, Attavar,
Mangalore - 575 001.
...RESPONDENT
COMMON
(By Shri. P.P.Hegde, Advocate)
*****
IN CRL.R.P.No.231/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.660/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.232/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
4
C.C.No.661/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.233/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.662/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.234/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.663/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.235/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.664/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
5
IN CRL.R.P.No.236/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.665/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.237/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.666/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.238/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.667/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
6
IN CRL.R.P.No.239/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.668/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.240/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.669/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.241/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.693/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
7
IN CRL.R.P.No.242/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.694/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.243/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.695/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.244/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.696/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
8
IN CRL.R.P.No.245/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.697/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.246/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.698/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
IN CRL.R.P.No.247/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.699/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
9
IN CRL.R.P.No.248/2014
This Criminal Revision Petition is filed under Section
397 and 401 of the Code of Criminal Procedure, 1973, praying
to set aside the conviction and sentence dated 16.1.2014 passed
in Crl.A.No.150/2013 to 167/2013 by the Court of III
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore and order dated 1.4.2013 passed in
C.C.No.700/2009 by the JMFC (V Court), D.K., Mangalore, by
allowing this petition, and acquit the petitioners.
These Criminal Revision Petitions having been heard and
reserved on 05.09.2014 and coming on for pronouncement of
Orders this day, the Court delivered the following:-
ORDER
These petitions are heard and disposed of together as the same are preferred by the very petitioners against the very respondent and are preferred challenging a common judgment. 10
2. The respondent was the complainant before the trial court and sought to prosecute the petitioners herein for offences punishable under Section 138 of the Negotiable Instruments Act, 1881, (Hereinafter referred to as the 'NI Act', for brevity), in respect of the several cheques issued by the petitioners in favour of the respondent in the course of business transactions between the petitioners and the respondent, which were said to have been dishonoured.
The respondent is said to be a registered partnership firm. The petitioner no.1 is a private limited company, incorporated under the Companies Act, 1956. The petitioner no.2 is the Managing Director of petitioner no.1. The respondent is said to be engaged in the business of manufacturing fish meal and other allied sea products. It is stated that the petitioners were purchasing steam - sterilized fish meal from the respondent. In respect of supplies made against orders for the said goods, during the period 25.3.2008 to 23.6.2008, it is claimed that the 11 petitioners were due to pay a total amount of Rs.121,81,750/- and it is admitted that a total amount of Rs.30,39,100/- was paid against the said due, by way of cheques. It is stated on a demand for payment of the balance amount - the petitioners had admitted an outstanding amount of Rs.78,18, 000/-, though the actual amount outstanding was Rs.82,42,450/-, vide letter dated 6.10.2008, and is said to have undertaken to pay the same by 31.10.2008.
It is stated that the petitioners had, in fact, issued a total of 18 cheques in varying amounts, totaling to Rs.71 lakh, as detailed hereinafter. The same when presented by the respondent through its banker, are said to have been returned with an endorsement, by the banker of the petitioners, that the funds in the account were insufficient and accordingly were dishonoured. In the wake of which, the respondent is said to have issued notices as contemplated under Section 138 of the NI Act, which were duly served on the petitioners, who are 12 said to have replied to the same, denying the issuance of the cheques towards payment of the outstanding amount, but claiming that the respondent had obtained the cheques, endorsed in blank, at the inception of the transactions to make supplies on credit and that the same were mischievously sought to be misused in seeking to foist a criminal liability. It is in that background that the respondent is said to have instituted 18 complaints, one, in respect of each cheque that was dishonoured. The magistrate is said to have taken cognizance of the cases and after having recorded the sworn statements of the complainant, had directed the issuance of summons to the petitioners.
The distinct case registered in respect of each cheque that was dishonoured and the amount for which the same was drawn and the respective date thereof, are shown hereunder in tabular form :
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Sl. P.C.Number C.C.Number Cheque No. Amount No. 1 P.C.No.156/09 C.C.No.660/2009 348652 dt:05.11.08 Rs.2,00,000/-
2 P.C.No.157/09 C.C.No.661/2009 773264 dt:16.07.08 Rs.4,00,000/-
3 P.C.No.158/09 C.C.No.662/2009 773266 dt:18.07.08 Rs.4,00,000/-
4 P.C.No.159/09 C.C.No.663/2009 773572 dt:14.08.08 Rs.5,00,000/-
5 P.C.No.160/09 C.C.No.664/2009 772047 dt:14.07.08 Rs.2,00,000/-
6 P.C.No.161/09 C.C.No.665/2009 772048 dt:15.07.08 Rs.2,00,000/-
7 P.C.No.162/09 C.C.No.666/2009 773575 dt:18.08.08 Rs.5,00,000/-
8 P.C.No.163/09 C.C.No.667/2009 348653 dt:10.11.08 Rs,3,50,000/-
9 P.C.No.170/09 C.C.No.668/2009 348654 dt:13.11.08 Rs.3,50,000/-
10 P.C.No.173/09 C.C.No.669/2009 773265 dt:19.07.08 Rs.4,00,000/-
11 P.C.No.164/09 C.C.No.693/2009 773578 dt:21.08.08 Rs.5,00,000/-
12 P.C.No.165/09 C.C.No.694/2009 773576 dt:19.08.08 Rs.5,00,000/-
13 P.C.No.166/09 C.C.No.695/2009 773571 dt:13.08.08 Rs.5,00,000/-
14 P.C.No.167/09 C.C.No.696/2009 773573 dt:15.08.08 Rs.5,00,000/-
15 P.C.No.168/09 C.C.No.697/2009 772046 dt:11.07.08 Rs.2,00,000/-
16 P.C.No.169/09 C.C.No.698/2009 773574 dt:16.08.08 Rs.5,00,000/-
17 P.C.No.171/09 C.C.No.699/2009 773577 dt:20.08.08 Rs.5,00,000/-
18 P.c.No.172/09 C.C.No.700/2009 773263 dt:17.07.08 Rs.4,00,000/-14
It is stated that the petitioners, who were the accused, had entered appearance in those cases and pleaded that they were not guilty of the offences alleged. The respondent had then tendered evidence. It is stated that the statements of the petitioners under Section 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'CrPC', for brevity) was said to have been recorded. The petitioners had not chosen to lead any evidence. The Trial Court is said to have rendered a common judgment dated 12.6.2012 convicting the petitioners for the said offence.
The petitioners are said to have filed appeals in Crl.Appeals No.143, 144 and 146 to 161 of 2012 against the said judgments of the Trial Court. The respondent, in turn, is said to have filed appeals in Criminal Appeals No.162 to 179 of 2012, claiming enhancement of the sentence. The appeals filed by the petitioners were said to have been allowed and the matter remanded for a de novo trial.
15
On such remand, the Trial Court had again followed the same procedure and had again convicted the petitioners, against which, Criminal Appeals No.150 to 167 of 2013 are said to have been filed. The same having been dismissed and the judgment of the trial court having been affirmed, the present petitions are filed.
3. The learned counsel for the petitioners would contend that Section 219 of the CrPC stipulates that when a person is accused of more than one offence of the same kind, which are committed within a time span of 12 months, from the first to the last of such offences, whether in respect of the same person or not, the accused may be charged with and tried for any number of offences not exceeding three. The general rule is that the accused should be charged in respect of each distinct offence alleged to have been committed by him and he is entitled to a separate trial with respect to each of such charge in accordance with the provisions of Section 218 of the CrPC. The purpose of the statute is clear that if more than three charges are tried by a 16 single trial, the accused is likely to be bewildered and hence the legislature abjures the court from joinder of charges of more than three offences in a single trial.
The learned counsel would also contend that the courts below have failed to examine the prejudice caused to the petitioners on account of a common trial having been held in respect of 18 distinct complaints that were filed.
It is contended that reliance placed on Exhibit P-9, a letter dated 6.10.2008, said to have been issued by the petitioners admitting the debt and undertaking to pay the same by 31.10.2008, is untenable, as the same had not been brought to the attention of the accused in compliance with Section 313(1)(b) of the CrPC, in the accused never having been questioned with reference to the same as mandated by the said provision.
The learned counsel for the petitioners seeks to place reliance on several authorities in support of his contentions, and seeks that the judgments of the courts below be set aside. 17
4. On the other hand, the learned counsel for the respondent would contend that the proceedings are in their second round in view of the earlier judgment of the Trial Court having been reversed and the matters having been remanded by the lower appellate court in the first instance. It is pointed out that the petitioners had never made a grievance of the circumstances now sought to be canvassed as the primary grounds of challenge, for the first time, before this court. Incidentally, the said grounds do not find place in the body of any of the petitions.
It is contended that though individual notices had been issued in respect of each of the 18 cheques that were dishonoured and notwithstanding that a distinct complaint was filed in respect of each of instances, the Trial Court having conducted the trial in common and having recorded evidence in respect of each complaint commonly, was in order to save time, effort and expense. This was in any case to the advantage of the accused and did not result in bewildering him with a 18 plethora of cases, requiring him to appear in at least 6 cases, if the contention of the petitioners, now put forward, is to be accepted. In any event, it is pointed out that the apex court has held that a departure from the Rule provided under the corresponding relevant provisions, prior to the amended Code of 1973, would not vitiate the proceedings as the same are in the nature of enabling provisions, unless such departure has indeed resulted in any prejudice being caused to the accused. In this regard, reliance is placed on the decision of the apex court in the case of Ranchod Lal v. State of Madhya Pradesh, AIR 1965 SC 1248.
It is also contended that the proceedings were conducted by the trial court as a summary trial and not as a summons case and hence the very application of Section 219 CrPC is not tenable. Reliance is placed on a decision of this court in the case of Tiruchandoor Muruhan Spinning Mills (P) Ltd. v. Madanlal Ramkumar Cotton and General Merchants, (2001)107 Company Cases 597, wherein it is held that there is 19 no bar to lodge a single complaint in respect of more than one offence punishable under Section 138 of the NI Act. That it is to the advantage of the accused and not to his disadvantage. Further, it is held that Section 219 of the Cr.P.C., would not apply to proceedings under Section 138 of the NI Act.
5. In the light of the above contentions and on a perusal of the record, it is be noticed at the outset that, on facts, it cannot be said that the findings of the courts below can be faulted. It is only the above contentions that require to be addressed. It is pertinent to mention that though the proceedings have gone through two rounds, before the trial court and the appellate court, the contentions now put forth, in these petitions, were never raised.
Notwithstanding that the petitioners seek to raise more than one legal contention in these proceedings, a point that is taken up for consideration is, whether the trial court could have conducted a common trial in respect of 18 distinct complaints filed by the respondent against the petitioners, alleging an 20 offence punishable under Section 138 of the NI Act, in respect of separate cheques of varying amounts, issued by the petitioners. There is divergence of opinion among several High Courts, on this and a corresponding question, whether a single complaint could be filed in respect of dishonour of multiple cheques issued by the accused in favour of the complainant, in respect of the same transaction.
In addressing the above, it is necessary to take note of the dictum of the Apex Court in the case of Damodar S. Prabhu v. Sayed Babalal H., (2010)5 SCC 663, While addressing a situation where complaints alleging offences punishable under Section 138 NI Act, were being filed in multiple jurisdictions, some times deliberately, causing harassment and prejudice to the drawers of the cheques, the Court has made certain pertinent observations apart from issuing strong directions in respect of such cases, the observations and directions relevant for the present purposes , are as hereunder:
21
" 4. It may be noted that when the offence was inserted in the statute in 1988, it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the Act in 2002. It is quite evident that the legislative intent was to provide a strong criminal remedy in order to deter the worryingly high incidence of dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a "fine which may extent to twice the amount of the cheque"
serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the private parties involved in commercial transactions.
5. Invariably, the provision of a strong criminal remedy has encouraged the institution of a large number of cases that are relatable to the offence contemplated by Section 138 of the Act. So much so, that at present a disproportionately large number of cases involving the dishonour of cheques is choking our criminal justice system, especially at the level of Magistrates' Courts. As per the 213th Report of the Law Commission of India, more than 38 lakh cheque bouncing cases were pending before various courts in the country as of October 2008. This is putting an unprecedented strain on our judicial system. 22
17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act - Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]:
"... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.
If we were to examine the number of complaints filed which were `compromised' or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."
18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. .......
23. We are also in agreement with the Learned Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same 23 transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an installment basis to be repaid in equated monthly installments, several cheques are taken which are dated for each monthly installment and upon the dishonor of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively."
It is evident from the above observations that cases under Section 138 of the NI Act are to be treated as a separate class of 24 quasi - criminal cases, governed by the special procedure prescribed under Sections 142 to 147 of the NI Act, it is only if the said provisions are silent and do not provide for a particular circumstance or as to a particular aspect , that the provisions of the Cr.P.C., may be applied , as far as may be warranted.
Assuming that the provisions of the Cr.P.C., pertaining to joinder of charges are to be applied in respect of multiple complaints against the same accused, in respect of multiple cheques issued in respect of the same transaction, in favour of the complainant, which are shown to be dishonoured, the exception to the basic rule, as found under Sub-section (1) of Section 220 may be noticed: 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.
The word 'transaction' has not been defined in the Code. The word is one of elastic import and it has been probably 25 advisedly left undefined. (See: R.P. Reddy v. Chand Mohd., 1973 Cri.L J 1082).
The Apex Court has in State of Andhra Pradesh v. Cheemalapati Ganeshwara Rao, AIR 1963 SC 1850, stated thus :
"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 coexist 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 26 circumstance to indicate that these 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..."
It has also been held by the Apex court that Section 220 is an enabling provision, which permits the court to try more than one offence in one trial. The court may or may not try all the offences together in one trial. (See: Mohinder Singh v. State of Punjab, ( (1998)7 SCC 390).
6. In the light of the above principles and views expressed by the Apex court, in the facts and circumstances of the present case on hand - the transaction of supply of steam- sterilized fish meal was spread over a period of time. The parties by their correspondence have treated the transaction as one, as the total amount claimed as outstanding is a single consolidated amount. The several cheques issued, albeit spread over a period of five months, was in respect of that outstanding amount. It could hence be said that the cheques were issued in 27 respect of the 'same transaction', as contemplated by the apex court in the case of Chemalapati Ganeshwara Rao, supra.
The separate complaints were however, identical and it could not be said that it had the effect of bewildering the accused, in the same having been combined in one trial. In any event the accused did not complain of any prejudice thereby, at any stage of the proceeding, except in the present proceedings. The consolidation has in fact rendered the proceedings less cumbersome, more convenient and has avoided duplicity, effort and expense . And most important of all has saved precious court time, which otherwise would have been eaten into , in several trials being conducted.
It is clear that there is no illegality in the trial court proceeding to conduct a common trial in respect of 18 distinct complaints, having regard to the facts and circumstances of the case. That aspect, namely, the facts and circumstances in any given case or cases, would be the key. The trial court in a given case should form a clear view that the several complaints are 28 indeed in respect of the same transaction and that no prejudice would be caused to the accused in adopting such a procedure, or in entertaining a single complaint in respect of several offences punishable under Section 138 of the NI Act.
Other incidental grounds urged are not significant and do not merit consideration. The Petitions are dismissed.
Sd/-
JUDGE nv*