Delhi High Court
Sanjay Kumar Ghai S/O Late Shri D.N. Ghai vs The State Through Its Chief Secretary, ... on 19 December, 2007
Author: V.B. Gupta
Bench: V.B. Gupta
JUDGMENT V.B. Gupta, J.
1. This petition has been filed under Section 482 CrPC seeking quashing of impugned order dated 16.4.2007 passed by the Magistrate and praying that there shall be only one trial in all the five cases filed against the petitioner.
2. The present petitioner has taken loans from different persons and has issued various cheques to different persons. On bouncing of those cheques issued by the present petitioner, different persons have filed separate cases under Section 138 of the Negotiable Instruments Act against the petitioner.
3. As per the averments made in the present petition, the petitioner filed an application before the Magistrate under Section 219/220 CrPC interalia praying the court for joint trial of all the five complaint cases which are as under:
a. J.K.Gulati v. Sanjay Ghai, vide C.C. No. 2715/2004, b. Meenu Gulati v. Sanjay Ghai, vide C.C. No. 2716/2004, c. Kuldip Gulati v. Sanjay Ghai, vide C.C. No. 2717/2004, d. J.K.Gulati v. Sanjay Ghai, vide C.C. No. 973/1/2006 and e. J.K.Gulati v. Sanjay Ghai, vide C.C. No. 974/2006.
4. Learned Magistrate vide impugned order dismissed the application filed by the present petitioner.
5. It has been argued by the learned Counsel for the petitioner that all the five cases pending before the Magistrate against the petitioner are outcome and arising out of a single transaction and cause of action in all the five cases has arisen within a period of 12 months and as such this Court should order that there should be only one trial in all the five cases filed against the petitioner.
6. In support of his contention, the learned Counsel for petitioner has referred to judgment of A.E. Premanand v. Escorts Finance Ltd and Ors. (2004) 13 SCC 527; Vikram Tractors and Ors. v. Escorts Ltd and Anr. (2005) 10 SCC 80 and Ayyannar Agencies and Anr. v. Sri Vishnu Cement Ltd and Anr. .
7. The present petition has been filed under Section 482 CrPC which reads as under:
482. Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
This provision of law envisages three circumstances under which the inherent jurisdiction may be exercised, namely -
i) to give effect to an order under the code,
ii) to prevent abuse of the process of court, and
iii) to otherwise secure the ends of justice.
8. Further to seek interference under this Section, three conditions are to be fulfillled, namely -
i) the injustice which comes to light should be of a grave and not of a trivial character;
ii) it should be pulpable and clear and not doubtful; and
iii) there exists no other provision of law by which the party aggrieved could have sought relief.
9. Keeping in view these principles in mind, it is to be seen as to whether the present petition under Section 482 CrPC is maintainable or not.
10. As per the detail of the five cases mentioned hereinabove, three cases are between the same parties while other two cases are between different parties. Learned trial court has considered all the submissions made on behalf of the petitioner in detail and the relevant portion of the impugned order reads as under:
14. In the present case although offences in Complaint Case Nos. 2715/1. 2716/1 and 2717/1 have been committed by the accused within a period of one year but one trial of the same cannot be held as complainants in all the 3 Complaint Cases are different. In Complaint Case No. 2715/1 the complaint is J.K. Gulati, in Complaint Case No. 2716/1 the complainant is Meena gulati and in Complaint Case No. 2717/1 the complainant is Kuldeep Gulati.
15. The Bank account where the cheques were presented by all these 3 Complainants is also different. Even if one trial is ordered then also 3 Complainants has to appear in all the 3 Complaint Cases to depose. Therefore, no purpose will be served in ordering for one trial. On the contrary having regard to the different cheques in all the 3 Complaint Cases and to the fact that complainants are different and the Bank account where the cheques were presented it will be lead to lot of complexities if one trial is ordered in all the 3 Complaint Cases.
16. The judgment relied upon by the counsel for the accused passed by hon'ble High Court in 107 (2003) DLT 275 in case Gulshan Kumar Ahuja V/s Veena Sharma, is not applicable in the facts and circumstances of the case as parties in all the 3 Complaint Cases are not same. Therefore, ordering for one trial will lead to complexities. Therefore, plea of accused counsel Under Section 219 CrPC seeking one trial of 3 Complaint Case Nos. 2715/1, 2716/1 and 2717/1 is accordingly rejected.
17. The plea of the accused counsel to hold one trial in all the 5 cases as per Section 220(1) CrPC is not acceptable as Section 220(1) CrPC provides as follows:
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.
18. Section 220(1) CrPC lays stress upon the commission of more than one offence during the course of same transaction.
19. Under Section 138 Negotiable Instrument Act, the offence is committed when accused fails to make the payment on the expiry of 15 days after receipt of Legal Notice.
20. In Complaint Case No. 2717/1 the Legal Notice is dated 11.1.2000 and the same was dispatched through Speed Post on 11.1.2000 and the endorsement regarding the same is 2.2.2000. Therefore, 15 days from 2.2.2000 expires on 17.2.2000. Therefore, accused in Complaint Case No. 2717/1 has committed offence Under Section 138 of Negotiable Instrument Act on 17.2.2000. On 17.2.2000 when the offence in Complaint Case No. 2717/1 was committed no other offence has been committed by the accused forming part of the same transaction for which one trial can be ordered. Had the accused committed any other offence on 17.2.2000 then one trial could have been ordered, for e.g.; if on the date of commission of offence i.e. on 17.2.2000 Under Section 138 of Negotiable Instrument Act, 1881, had the accused called upon the complainant and had threatened to kill on 17.2.2000 or had the accused given beating to the complainant on 17.2.2000 or had the accused given beating to the complainant on 17.2.2000 then the offence for criminal intimidation or simple hurt could have been tried together with offence of 138 of Negotiable Instrument Act, 1881, as these offences were committed by the accused during the course of same transaction. The illustration given in 220 CrPC are also in support to my above mentioned reasoning. However in none of five complaint cases any other offence has been committed to form part of same transaction.
21. Further, even the date of commission of offence is different in all the five complaint cases. The date of commission of offence in Complaint Case Nos. 2715/1 and 2716/1 is same i.e. 17.2.2000, whereas in Complaint Case Nos. 973/1 the date of commission of offence is 28.7.2002. In complaint case No. 974/1 the date of commission of offence is 25/1/2003. Therefore, all the 5 offences do not form part of same transaction as there is no proximity of time. Hence, the plea of accused counselseeking one trial in all the 5 Complaint Cases Under Section 220 CrPC is accordingly rejected.
22. During the course of arguments the counsel for the accused has expressed his apprehension that if all the 5 Complaint Cases are not tried together then his defense shall be prejudiced as by cross examining one complainant his defense shall be disclosed to the other 2 complainants and the defense is likely to be turned redundant by the other two complainants by preparing their evidence to meet with the same. Therefore, he has made a prayer that joint trial of all the 5 Complainant Cases be ordered.
23. The apprehension of accused counsel that if all the 5 Complainant Cases are not tried together then his defense shall be prejudiced can be remedied by asking all the complainants to appear in all the complaint cases together on the same date and when one complainant is being cross examined by the counsel for the accused the other two complainants can be asked to stand outside the court room. By doing this the defense of accused counsel will not be disclosed.
24. Further if counsel for the accused is unable to cross examine all the complainants together on the same date then only their examination in chief can be recorded and cross examination can be deferred so that counsel for accused can cross examine all the complainants on any next date.
11. Since, the complainants in these complaint cases are different and the bank accounts where the cheques were presented by these complainants are also different, so, under these circumstances, I do not find any illegality or infirmity in the impugned order passed by the learned trial court. Moreover, all these complaint cases are at different stages so it cannot be said that any prejudice has been caused to the petitioner by not consolidating all these complaint cases and no irregularity can be attributed to the impugned order passed by the trial court.
12. Under these circumstances, the present petition is not maintainable and the same is hereby dismissed.