Rajasthan High Court - Jaipur
Umrao Mal Chordiya vs Assam Roller Flour Mills Ltd on 3 August, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB Criminal Misc. Petition No.2433/2009 Umrao Mal Chordiya Vs. Assam Roller Flour Mills Ltd. Date of order 3.8.2011 HON'BLE DR. MEENA V. GOMBER, J. Mr. Pankaj Gupta, for petitioner
Mr. Ashok Sharma, for the non petitioner By way of this petition, the accused petitioner has challenged the order dated 9.10.2009 passed in Revision Petition No.132/2009 by Additional Sessions Judge (Fast Track) No.3, Jaipur City, Jaipur whereby the revision was dismissed and order dated 30.7.09 passed by Additional Chief Judicial Magistrate No.7, Jaipur City, Jaipur in Criminal Case No.2954/2008, rejecting petitioner's application under Section 219 Cr.P.C., was upheld.
Heard the parties and perused the record.
Facts in brief are that a private complaint had been filed under Section 138 of the Negotiable Instruments Act, 1881 by the non petitioner complainant regarding cheque no.165472 dated 13.5.2008. The complainant had also filed two other complaints, being criminal case nos.3004/2008 and 3230/2008 regarding dishonour of cheques on different dates and pertaining to different transactions.
The petitioner accused, moved an application before the trial court under Section under Section 219 Cr.P.C. seeking consolidation of Criminal Case nos.3004/2008 and 3230/2008 with Criminal Case no.2954/2008, saying that all the three causes of action arose in one year and the parties are same, therefore, they be tried together.
Learned trial court dismissed the application by a detailed order, as against which the revision was filed, which was also dismissed by the order impugned.
I have gone through the order impugned.
Record shows that the petitioner admitted that three separate notices with regard to the three cases, had been issued on different dates and thus the cause of action also arose on different dates. There is nothing on record to show that all the cheques were of same date or they were dishonoured on the same date or the notices were issued on the same date, or they were part of the same transaction.
In the matter of Vijay Dev & others v. Kailash Chand & another, 2008 (2) Cr.L.R. (Raj.) 1206, this court has held that prosecution under Section 138 of the Negotiable Instruments Act, 1881 is a prosecution under special law and a distinct separate offence and it falls out as an exception of the scheme envisaged under Sections 219 Cr.P.C.
In the same manner, Gujarat High Court in Jayeshbhai Jayantibhai Maniar v. State of Gujarat, 2005 (2) DCR 618, and Kerala High Court in Sidhardhan v. Prasannan, 2006 (2) Cr.C.C. 812 (Kerala), have held that the prosecution filed under Section 138 of the Negotiable Instruments Act, regarding dishonour of cheques, cannot be said to be one transaction, if the cheques are of different dates, presented on different dates and dishonoured on different dates with regard to which the notices were issued on different dates, the provisions of Sections 219 and 220 Cr.P.C. do not get attracted.
The contention of the learned counsel for the petitioner that the learned trial court, so also the revisional court have committed an error by rejecting his application under Section 219 Cr.P.C., is not sustainable, for the reason that a cause of action for prosecution in respect of dishonour of a cheque arises only if the drawer commits default in making payment within stipulated period, after receipt of the notice required to be given in conformity with proviso (b) of Section 138 of the Act, in respect of each tender and the non payment of the drawee bank on the ground that the balance amount in the account of the drawer is insufficient to honour his commitment or it exceeds the amount arranged to be paid from that account by an agreement with the drawee bank.
Each tender of a cheque and its dishonour gives rise to a separate cause of action subject to a condition that separate notices are issued in respect of each of these cheques. The payee is not prevented from combining the causes of action by covering all the instances in a single notice. In such a case all the transactions covered by the notice would be regarded as a single transaction, permitting a single trial.
However, in a case where cheques were issued on different dates, presented on different dates and separate notices were issued in respect of each default, the transaction cannot be held to be a single transaction attracting provision of Section 219 Cr.P.C. Since the dishonour of each cheque constitutes a separate offence, which should ordinarily be tried by different trials. Section 219 is an enabling provision and does not mandate a single trial. In appropriate case the court is at liberty to try the offences of the same kind in different trial.
Learned counsel for the petitioner has placed reliance on the Apex Court judgment in the matter of Damodar S. Prabhu v. Sayed Babalal H., delivered on 3.5.2010 in Criminal Appeal No.963/2010. In that case, matter was also of the same transaction whereas in this case admittedly three separate notices were issued.
In view of the settled position of law, in particular, in the facts and circumstances of the case, as there were three different notices issued regarding the dishonour of three different cheques, it cannot be said to be same transaction, therefore, I do not find any error in the order impugned, which may warrant interference of this court in exercise of its inherent jurisdiction.
Accordingly, the petition is dismissed being devoid of any merit.
(Dr. Meena V. Gomber) J.
db [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya P