Kerala High Court
Shibi @ Jiby Shony vs Chalakudy Town Financiers on 22 January, 2015
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939
Crl.MC.No. 8700 of 2016 ()
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CRL.M.P.NO.12789/2016 IN S.T.NO. 2210/2015 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-1 CHALAKUDY
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PETITIONER/ACCUSED:
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SHIBI @ JIBY SHONY
W/O.SHONY VARGHESE,
KOZHIPPADAN HOUSE,
PADUVAPURAM, EDAKKUNNU VILLAGE,
KORATTY, THRISSUR DIST.
BY ADV. SRI.M.J.SANTHOSH
RESPONDENT/COMPLAINANT:
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1. CHALAKUDY TOWN FINANCIERS
REP.BY SOJAN, S/O.SUNNY,
AMBOOKKEN HOUSE, PUTHENCHIRA,
MUKUNDHAPURAM TALUK,
THRISSUR DIST.
2. THE STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 04-04-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sdr/-
Crl.MC.No. 8700 of 2016 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE-P1: THE TRUE COPY OF NOTICE DATED 22.1.2015 ISSUED
TO THE PETITIONER.
ANNEXURE-P2: THE TRUE COPY OF COMPLAINT IN S.T.2210/2015 DATED 4/5/15.
ANNEXURE-P3: THE TRUE COPY OF COMPLAINT IN S.T.3205/2015 DATED 15/6/15.
ANNEXURE-P4: THE TRUE COPY OF COMPLAINT IN S.T.2380/2015 DATED 18/5/2015.`
ANNEXURE-P5: THE TRUE COPY OF COMPLAINT IN S.T.6548/2015 DATED 24/6/15.
ANNEXURE-P6: THE TRUE COPY OF ORDER IN CMP NO.12789/15 IN
S.T.2210/2015 DATED 14/11/15.
RESPONDENT(S)' EXHIBITS NIL
----------------------------------------
/TRUE COPY/
PA TO JUDGE
sdr/-
"C.R"
ALEXANDER THOMAS, J.
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Crl.M.C.No.8700 of 2016
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Dated this the 4th day of April, 2017
O R D E R
The petitioner has been arrayed as accused in four complaints instituted by the 1st respondent herein, before the Judicial First Class Magistrate's Court-I, Chalakkudy, alleging offence punishable under Sec. 138 of the Negotiable Instruments Act. The four complaints in question are (1) S.T.No.2210/2015, (2) S.T.No.2380/2015, (3) S.T.No.3205/2015 and (4) S.T.No. 6548/2015. The petitioner is a lady and is teacher by profession. It is stated that 1st respondent, who is a money lending firm, is the complainant in all the four cases.
2. Anxs.A-2 to A-5 are the copies of the impugned complaints. According to the prosecution case, the petitioner and her husband had availed 3 loans from the complainant firm for a total amount of Rs. 20,88,000/- and due to default in making instalments of the loans, the complainant had issued single notice as per Anx.A-1 dated 22.1.2015, calling upon the accused to clear the entire dues in the 3 loans. It is further alleged by the complainant that on 14.2.2015, the complainant and her husband went to the complainant's office and issued 4 cheques of the petitioner and one cheque of her husband to clear the Crl.M.C.8700/16 - : 2 :-
dues in the said 3 loan accounts. As per the complainant's case, there was due of Rs.55,200/- in one loan account, Rs.1,65,600/- in another loan and Rs. 7,72,800/- in the third loan. That none of the cheques were issued to clear any particular loan, but has been issued to clear the total liability covered by the single and composite notice as per Anx.A-1 dated 22.1.2015.
3. That the petitioner had filed separate applications before the learned Magistrate seeking joint trial of all the four cases by virtue of the provisions contained in Sec.220(1) of the Cr.P.C. The court below passed Anx.A-6 order dated 14.11.2015 on Crl.M.P.No.12789/2016 in S.T.No. 2210/2015, as per which, the trial court has ordered to conduct joint trial of 3 cases viz., S.T.No.2210, S.T.No.2380/2015 and S.T.No. 3205/2015.
4. Though the petitioner had filed application for joint trial of four cases mainly by placing reliance on Sec. 220(1) of the Cr.P.C., it appears that the learned Magistrate has taken the view in Anx. A-6 order that not more than 3 cases could be subject matter joint trial by virtue of the specific restriction in Sec.219 of the Cr.P.C that not more than 3 cases could be clubbed. The prayer of the petitioner is that this Court may set aside the impugned Anx.A-6 order to the limited extent it has allowed the plea for joint trial of only 3 cases and to direct the learned Magistrate to permit the joint trial of not only the 3 complaints, but also Crl.M.C.8700/16 - : 3 :-
that of the fourth complaint as well.
5. At the time of admission of this case, notice by speed post was duly ordered to R-1 (complainant). This Court had also ordered grant of interim stay of further proceedings on 14.12.2016, which was later extended until further orders on 28.3.2017. Though notice has been duly served on R-1, there is no appearance for that party.
6. Heard Sri.M.J.Santhosh, learned counsel appearing for the petitioner (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.
7. The learned Magistrate had taken the view in Anx.A-6 order that by virtue of the enabling provisions in Sec.219 of the Cr.P.C., not more than 3 cases could be jointly tried as per that provision.
8. According to the petitioner, the main plea made by her in her application was for an order for joint trial of all the four cases by virtue of the enabling powers conferred under Sec. 220(1) of the Cr.P.C. However, the learned Magistrate has rejected the said request on the ground that not more than 3 cases could be jointly tried by virtue of the provisions contained in Sec.219 of the Cr.P.C. Sec.219 deals with situation of 3 offences of the same kind within an year being charged together. Sub section (1) of Sec. 219 stipulates that 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 Crl.M.C.8700/16 - : 4 :-
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, etc. Strictly speaking, the provisions contained in Sec. 219 may not be applicable in a case like the instant one, where the plea at the instance of the accused is for joint trial of cases more than 3. Moreover, according to the petitioner, her specific plea in her application for joint trial was by citing the provisions contained in Sec. 220(1) of the Cr.P.C. Sub section (1) of Sec. 220 stipulates 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, etc. It has been held by the Calcutta High Court in Kashiram Jhunjhunwalla v. Emperor reported in (1935) ILR 62 Cal. 808 that the world "transaction" means a group of facts so connected together as to involve certain ideas, viz., unity, continuity and connection and in order to determine whether a group of facts constitutes one transaction, it is necessary to ascertain whether they are so connected together as to constitute a whole which can properly be described as a transaction. The real and substantial test, by which to determine whether several offences are so connected as to form the same transaction depends on whether they are so related to one another in point of purpose or cause and effect, or as principal and subsidiary acts as to constitute one continuous action. The fact that offences are committed at different times does not Crl.M.C.8700/16 - : 5 :-
necessarily show that they may not be so connected as to fall within this section. The proximity of time, unity or proximity of place, continuity of action, community of purpose or design are elements for consideration, whether the alleged facts form the same transaction [See Queen Empress v. Vajiram, reported in (1982) 16 Bom. 414, 424, Kamala Kanta Ray Chaudhuri, (1938) 1 Cal.98, etc.). It has been held in K.Govindaraj v. Ashwin Barai, reported in 1998 Crl.L.J. 22 (Mad) that where the accused gave six cheques to the complainant for presentation to the bank for encashment on the same day, and all the cheques were dishonoured subsequently on a single day, all the acts of the accused of giving these cheques merged together to form the same transaction and that so the accused can be jointly tried at one trial for such offence in terms of Sec.220(1) of the Cr.P.C. etc. It is by now well established that the provisions of Sec.220 of the Cr.P.C. and its earlier version in the old Code are not imperative, but only enabling provisions. It has been held in Gurucharan Samal v. State, reported in AIR 1953 Ori.258 = (1953) Crl.L.J.96, that where sameness of the transaction is wanting, only three offences of the same kind alleged to have been committed during the period of one year could be tried jointly, by virtue of the provisions contained in Sec.219 of the Cr.P.C. It has been held by the Division Bench of the Karnataka High Court in State of Karnataka v. M.Balakrishna, reported in 1980 CrLJ 1145 (Kant-D.B.) = ILR 1980 Kar. 1070 that to constitute "same transaction" the series of acts Crl.M.C.8700/16 - : 6 :-
alleged against the accused must be connected together in the same way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action and the main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts came to an end.
9. The Division Bench of the Punjab & Haryana High Court in the judgment in Sh.Charashni Kumar Talwani v. Malhotra Poultries, Barwala, reported in 2014 KHC 3295, has held that where ten cheques have been simultaneously presented to the banker on the same day and the dishonour was also effected on the same day for all the cheques, regarding which consolidated notice had been issued calling upon the drawer to make good the payment of those four cheques, does not suffer from the vice of joinder of many offence in one trial. Therefore, Sec.219 Cr.P.C. does not come into play. It appears from a reading of the said judgment that the said High Court has taken the view that joinder of trial under Sec.220(1) is applicable to the facts of that case.
10. The Apex Court has held in State of Punjab v. Rajesh Syal reported in (2002) 8 SCC 158, that the proviso to Sec.218 of the Cr.P.C. would apply only in a case where distinct offences for which the accused is charged are being tried before the same magistrate and where offences were being tried before different magistrates, the proviso to Sec.218 Crl.M.C.8700/16 - : 7 :-
cannot give any single magistrate the power to order transfer of cases to him from different magistrates or courts. It has also been held that in para 6 thereof that where, in one series of acts so connected together as to form the same transaction, more offences than one is committed, there could be joint trial, etc.
11. The Apex Court has held in Mohan Baitha v. State of Bihar reported in (2001) 4 SCC 350 has follows:
Code of"4.Criminal Procedure, offences more than one committed by the ...... It may be noticed that under Section 220 of the same persons could be tried at one trial, if they can be held to be in one series of acts, so as to form the same transaction. The expression "same transaction" from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria. Bearing in mind the aforesaid principles and on scrutiny of the narration of events in the FIR as well as the complaint, we do not find any infirmity with the conclusion of the High Court in applying Section 220 of the Criminal Procedure Code to the case in hand and in coming to the conclusion that the jurisdiction of the Magistrate at Bhagalpur cannot be held to have been ousted for the offence under Section 304-B IPC. In the aforesaid premises, we see no merits in this appeal, which accordingly stands dismissed. The interim order of stay stands vacated and the Magistrate is directed to proceed with the matter expeditiously, in accordance with law...."
12. Secs. 218, 219 and 220 of the Cr.P.C. read as follows:
distinct"Sec.
separate offenceand every such charge shall be tried separately:
218:of Separate charges for distinct offences- (1) For every which any person is accused there shall be a charge writing,Provided that where the accused person, by an application in so desires and the Magistrate is of opinion that such person is Crl.M.C.8700/16 - : 8 :-
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.
charged"Sec.219: Three offences of same kind within year may be 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 laws:
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.
of acts"Sec.connected together as to form the same transaction, more 220: Trial for more than one offence.- (1) If, in one series offencessothan one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. criminal(2)breach of trust or dishonest misappropriation of property as When a person charged with one or more offences of 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 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 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)."
Crl.M.C.8700/16 - : 9 :-
13. A learned Single Judge of this Court in V.K.Mohammed v.
State of Kerala & Anr. reported in 2004 (3) KLT 330 = 2004 (2) KLJ 447 = 2004 KHC 1129 has dealt with a case of six cheques allegedly issued to the complainant on the same day for due discharge of a total liability of Rs. 1,80,000/- and though those cheques bore different dates, they were not presented for encashment immediately after the dates shown in such cheques and all the cheques were presented together for encashment and the dishonour memo in respect of all the six cheques were dated 18.9.2000 and all of them were dishonoured on the identical ground of insufficiency of finds on 18.9.2000. The complainant had caused one registered notice of demand to be issued on 25.9.2000 and a common reply was given by the accused on 9.10.2000 raising identical contentions.
14. This Court in V.K.Mohammed's case supra held that Sec.218 of the Cr.P.C. declares the general policy of law that for every distinct offence there must be a separate charge/allegation and that every charge/ allegation shall be tried separately. For one offence there should be one charge and one trial is thus the declared policy of law. But it is not rigid principle of universal application. In later provision of Chapter XVII B provides exceptions to this general rule. Even in S.218(1) there is a well recognised exception and if an accused person so desires and makes an application in writing and the court is satisfied that no Crl.M.C.8700/16 - : 10 :-
prejudice is likely to result therefrom, any number of charges framed against a person can be tried in one trial. S.219(1) Cr.P.C. refers to identical offences committed on different dates during a span of 12 months and S.219(1) permits joinder of those charges, provided they are offences of the same kind. Further it has been held in para 6 of the V.K.Mohammed's case supra that S.220(1) deals with a different situation and exception to the Rule under S.218 is carved out and any number of offences can be subjected to and tried in one trial if such offences are committed by the same person and the acts alleged are so connected together as to form and part of the same transaction. It has also been held therein that proviso to S.218(1) is not applicable in facts of V.K.Mohammed's case supra, as plea for joint trial was made by the complainant and the accused was not willing to follow that course, in that case. This Court held in para 8 therein that S.219 cannot also be made applicable, because there were more than 3 offences. After placing reliance on the decision of the Apex Court in in Mohan Baitha v. State of Bihar, reported in (2001) 4 SCC 350, this Court held that in the facts of that case, the offences in respect of six 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. Therefore, it was concluded that the offences under S.138 in respect of those cheques can easily be held to be offences committed in the Crl.M.C.8700/16 - : 11 :-
course of same transaction and S.220(1) of the Cr.P.C. squarely applies. It may be profitable to refer to paras 5 to 11 of the said decision in V.K.Mohammed's case supra, which read as follows:
extract"5. S.218(1), 219(1) and 220(1) Cr.P.C. appear to be relevant. I those statutory provisions below;
S.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.
S.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. S.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.
S.218 declares general policy of law that for every distinct offence there must charge/allegationseparate tried separately. Oneand be a charge/allegation shall be offence, oneevery that chargesuch and one trial is thus the declared policy of law. But this is not rigid principle of universal application. In later provision of Chapter XVII B we get exceptions to this general rule.
recognised exception. If an accusedEven in S.218(1) there is a well person so desires and makes an application in writing and the court is satisfied that no prejudice is likely to result therefrom, any number of charges framed against a person can be tried in one trial. S.219(1) Cr.P.C. refers to identical offences committed on different dates during a span of 12 months. S.219(1) permits joinder of those charges provided they are offences of the same kind.
6. S.220(1) deals with a different situation. Exception to the Rule under S.218 is carved out and any number of offences can be subjected to and tried in one trial if such offences are committed by the same person and the acts alleged are so connected together as to form and part of the same transaction. I need not refer to other provisions of Chapter XVII B which deal with other exceptions. S.223 stipulates that where more accused persons than one are concerned in the commission of the offence all of them can be tried together provided common charge Crl.M.C.8700/16 - : 12 :-
can be framed by virtue of the earlier provisions of that Chapter.
7. In the instant case six separate cheques are issued. All of them are dishonoured on the same day consequent to the alleged presentation on the same day. Separate dishonour memos are issued.
But all of them are issued on the same day and dishonour memos show that the dishonour was for identical reason. Thereafter, one notice of demand was issued covering all the cheques and one reply was issued by the accused in respect of all the cheques. Identical defence was raised also in respect of the cheques.
8. Proviso to S.218(1) is not applicable as accused is not willing to follow that course. S.219 cannot also be made applicable because there are more offences than three. The only question therefore is whether S.221 can be applied and that can be applied only if the issue of the six cheques can be said to be acts, so connected together as form the same transaction. In the decision reported in Mohan Baitha v. State of Bihar, (2001) 4 SCC 350, Supreme Court has lucidly referred to the principles which have to be borne in the mind to decide whether offences can be reckoned as part of the same transaction. I shall only advert to the relevant passage.
"It may be noticed that under S. 220 of the Code of Criminal Procedure, offences more than one committed by the same persons could be tried at one trial, if they can be held to be one series of acts, so as to form the same transaction. The expression "same transaction" from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore, a series of acts whether are to be connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria".
that the9.offences in respect of six cheques must certainly be held to be In the facts and circumstances of the case I am of the opinion part of the same transaction considering the purpose, the sequence, events, nature of the allegation, proximity of commission, unity of action etc. Therefore, it appears to be easy to conclude that the offences under S.138 in respect of those cheques can easily be held to be offences committed in the course of same transaction. If that be so, S.220(1) squarely applies.
petitioner thatAS.219(1) must control S.220(1) also. I am unable to accept
10. contention is raised by the learned counsel for the this contention. Ss.219 and 220 lay down different and distinct exception to the general rule contemplated under S.218. It cannot hence be contended that S.219(1) must control S.220(1) also. The decision of the Division Bench of this Court reported in Swarnalatha v.
Crl.M.C.8700/16 - : 13 :-
Chandramohan, 1996 (1) KLT 534, and decision of the Single Judge reported in Manoharan v. D.G.P., Kerala & Ors., 2001 (2) KLJ 721, Naresh Chander v. State of Rajasthan, 2001 (1) KLJ 425, Mohan Baitha v. State of Bihar, (2001) 4 SCC 350 and Metropoli Over Seas Ltd. v. Kuttiyanickal Rubbers (P) Ltd., 2003 (3) KLT SN 42, Case No.58 do all support the conclusion of the learned Magistrate.
11. I am in these circumstances satisfied that course adopted by the learned Magistrate of directing that the trial can be held in one common trial for the offences committed in respect of six cheques is correct and does not warrant interference. The challenge fails."
15. But it has to be borne in mind that in Sec.218 of the Cr.P.C. embodies the general rule as to the trial of accused persons which provides for separate trial of each accused person for every distinct offence and is based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet [See State of West Bengal v. Laisal Haque, reported in AIR 1989 SC 129 = (1989) 3 SCC 166]. The object of this Section is to ensure that the accused is not bewildered in his defence by having to meet several charges in no way connected with one another [See Queen Impress v. Fakirapa reported in (1980) 15 Bom.491]. It has also been held that the mind of the court might be prejudiced against the accused if he were tried in one trial upon different charges resting on different evidence and the object of this Section in requiring that there shall be separate trial for every charge is two-fold firstly to give the accused notice of charges and secondly to see that he is not embarrassed by having to meet charges in no way connected with one another. So the wholesome purpose behind Sec.218(1) is for protection of rights and interests of the accused.
Crl.M.C.8700/16 - : 14 :-
However, a proviso is expressly engrafted in sub section (1) of Sec. 218. which reads as follows:
distinct"S.218. of which any person is accused there shall be a separate offenceSeparate charges for distinct offences.-- (1) For every charge and every such charge shall be tried separately; writing,Provided that where the accused person, by an application in not likelysotodesiresand the Magistrate is of opinion that such person is be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person." It provides 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. It is also explicitly provided in sub section (2) of Sec.218 that nothing in sub-section (1) of Sec.218 shall affect the operation of the provisions of Secs. 219, 220, 221, 223, etc. It has also to be borne in mind that the provisions in the proviso to sub section (1) of Sec.218, 220(1), 219(1), etc. are only enabling provisions and it is ultimately for the court to take into account various aspects as to the convenience of the parties, as to whether it would cause unnecessary inconvenience and confusion for the parties or the court, etc. in taking common evidence in the joint trial, and more importantly as to whether it would cause any serious or substantial prejudice to the accused, etc. before taking a decision on such plea. Proviso to sub section (1) of Sec.218 will come into play only if the accused has voluntarily makes an application in writing and the magistrate is convinced that the Crl.M.C.8700/16 - : 15 :-
accused is not likely to be prejudiced thereby and whether or not, he may exercise his discretion to try together all or any number of the charges framed against such person, etc.
16. Coming to the facts this case, it is averred by the petitioner that the accused and her husband had taken 3 different loans from the complainant financing firm for Rs.5,22,000/-, Rs.5,22,000/- and Rs.10,44,000/-, thus totalling to Rs.20,88,000/- and that when there was default, the complainant had issued single composite notice as per Anx.A-1 dated 22.1.2015 directing them to clear the defaulted dues coming to Rs.55,200/- in one loan, Rs.1,65,000/- in another loan and Rs.7,72,800/- in the last loan and that on 14.2.2015, the accused and her husband had come to the complainant's office and had issued 4 cheques of the petitioner and one cheque of her husband to clear the defaulted dues in the said 3 loans and that out of the 4 cheques so issued by the accused, she had issued (1) cheque dated 18.2.2015 for Rs.1,80,000/-, (2) cheque dated 2.3.2015 for Rs.1,60,000/-, (3) cheque dated 28.3.2015 for Rs.3,00,000/- and (4) cheque dated 15.3.2015 for Rs.2,00,000/-, etc. The petitioner's husband had issued another cheque for Rs.1,40,000/-, which is not the subject matter of this complaint, etc. Accordingly, it is contended that even going by the averments in the complaint, none of the cheques has been issued either by the petitioner or by her husband to clear any particular loans, and that all the four Crl.M.C.8700/16 - : 16 :-
cheques of the accused have been issued to clear part of the total liability covered by single and composite Anx.A-1 notice dated 22.1.2015 issued by the complainant firm. Further that the said cheques were presented for encashment on 23.2.2015, 6.3.2015, 2.4.2015 and 21.4.2015 respectively and that the same were dishonoured and Anxs.2, 3, 4 and 5 demand notices were separately issued on separate dates, etc.
17. The facts of the present case are not similar to those in the decision of this Court in V.K.Muhammed's case reported in n 2004 (3) KLT 330. The instant cheques are said to be in respect of 3 different loan accounts and have been presented on separate days and have been dishonoured also on different days. But the crucial fact of the matter is that it is clearly averred in the complaint that after defaults on the part of the petitioner in clearing the loan instalments the complainant had issued a single and composite notice as per Anx.A1 dated 22.1.2015 calling upon the complainant to clear the entire liabilities in all the 3 loans coming to Rs. 55,200/-, Rs. 1,65,600/- and Rs. 7,72,800. Even as per the complaints, it is in pursuance of that composite Anx.A1 notice that the petitioner had issued the four cheques comprising of cheque dated 18.2.2015 for Rs. 1,80,000/-, cheque dated 2.3.2015 for Rs.1,60,000/-, cheque dated 28.3.2015 for Rs. 3 lakhs and cheque dated 15.3.2015 for Rs. 2 lakhs. The petitioner's husband is said to have issued a separate cheque, apart from the abovesaid four cheques of the petitioner. Thus Crl.M.C.8700/16 - : 17 :-
even going by the versions in the impugned complaints, none of the cheques issued by the petitioner are for clearing solely any of the 3 loan accounts, but have been issued to clear part of the total liabilities covered in the single and composite Anx.A1 notice. Since the complainant has issued Anx. A-1 notice, the separateness of the 3 loan accounts have lost their relevance and therefore the 4 cheques can be said to have been issued by the petitioner accused for clearing the liabilities of the same transaction flowing from Anx.A1 notice. In view of this aspect, this Court is of the considered view that the issuance and execution of the 4 cheques, can be broadly said to be part of the same transaction as envisaged in Sec. 220 (1) of the Cr.P.C., even though the presentations and dishonour were on different days. This interpretation is well justified especially in complaints for offence under Sec.138 of the N.I. Act. If the necessary ingredients of the abovesaid provisions in the Cr.P.C. are satisfied in a given case, and the trial court is also convinced that it will not cause any serious prejudice to the accused or any inconvenience to the parties and the court, through such joint trial, then consideration of such plea, especially in complaints under N.I. Act, may also expedite the trial process, as otherwise separate trials in such cases might only cause unnecessary delay, which may only take away the time and resources of the parties and the court. That apart, the proviso to Sec. 218(1) of the Cr.P.C. does not in any manner insist that the cases should emanate from Crl.M.C.8700/16 - : 18 :-
the same transaction. Since the accused is insisting for joint trial, the proviso to Sec. 218(1) will be invokable in the facts of this case.
18. True that provisions as in Secs.218(1) proviso, Sec. 219, Sec. 220, etc. confer only enabling powers and cannot be said to be imperative and it is essentially for the trial court to consider whether if such offences were tried together by adducing common evidence, would cause serious prejudice to the accused or it would lead to inconvenience to the parties or whether it would cause confusion to the parties and the court by taking common evidence, etc. By taking into account such relevant aspects, the criminal court can certainly refuse to try more than one offence at one time [see ILR 2003 (1) Kar.269-271, etc.]. Essentially the trial court is the best judge to evaluate the logistics and proper management of the evidentiary aspects of the trial. It is mainly for the trial court to exercise its discretion in a fair and proper manner, to evaluate the logistics and management of the trial, and as to whether common evidence would cause unnecessary confusion for the court and the parties and whether joint trial would seriously prejudice the accused and whether the in the interest of justice would require the consideration Crl.M.C.8700/16 - : 19 :-
of the said plea, etc.
19. In the instant case, the accused is insisting for joint trial of all the four cases as otherwise it would cause serious inconvenience and harassment to her, in having to frequently attend to the court on different occasions for different cases and that this would also hamper her professional duties as a teacher. The complainant has not raised any serious objections either before the trial court or before this Court, against the said plea of the accused. The trial court in the impugned order has no case that joint trial would cause any prejudice to the accused or that it would cause confusion by taking common evidence. The parties in all the four complaints are the same. Even the trial court finds that 3 out of the 4 complaints, could be jointly tried. The only ground on which the trial court has partially rejected the plea for joint trial of the fourth complaint along with the other 3 complaints, is that Sec.219 of the Cr.P.C. would allow joint trial of cases not exceeding 3. The petitioner has placed reliance only on the provisions contained in Sec. 220(1) of the Cr.P.C., in the impugned order. But the learned Magistrate has omitted to consider the applicability of Sec. 220(1) and Sec. 218(1) proviso of the Cr.P.C., which do not place any restrictions on the number of offences. Since the petitioner accused is insisting for joint trial, even the provision in Sec. 218(1) proviso could be pressed into service, which does not insist for sameness of the transactions. Since Crl.M.C.8700/16 - : 20 :-
none of these crucial aspects has been considered by the trial court in its proper perspective, the impugned Anx. A6 order dated 14.11.2016 to the limited extent it has refused to jointly try the fourth complaint along with the 3 other complaints, is liable to be interfered with. It is made clear that the impugned decision to the extent it has ordered clubbing of 3 cases is not interfered with. In this view of the matter, the impugned order to the limited extent it has not fully accepted the plea of the petitioner is set aside and it is ordered that the trial court shall jointly try all the four complaints. The petitioner may produce a certified copy of this order before the learned Magistrate, for further necessary action.
With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
///True Copy///
P.S. to Judge