Punjab-Haryana High Court
M/S Stone Export House Pvt Ltd And Anr vs M/S Taj Exports on 11 July, 2023
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2023:PHHC:086395
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
****
CRM-32559-2022 IN/AND CRM-M-20254-2018 (O&M)
Reserved on 27.02.2023
Pronounced on 11.07.2023
****
M/S STONE EXPORT HOUSE P.LTD. & ANR. ... Petitioners
VS.
M/S TAJ EXPORTS ... Respondent
****
CORAM: HON'BLE MR.JUSTICE SANDEEP MOUDGIL
****
Present: Mr. MR Chouhan, Advocate for applicant/petitioners
Mr. Anirudh Dhanda, Advocate for the respondent
****
Sandeep Moudgil, J.
CRM-32559-2022 This application has been filed by the applicant/petitioners seeking revival/restoration of the main petition which was dismissed for non- prosecution by this Court vide order dated 18.08.2022 on the ground that the applicant/petitioners have not complied with the order dated 05.03.2020 vide which, this Court directed the applicant/petitioners to file an affidavit disclosing as to how many complaints under Section 138 of Negotiable Instruments Act, or cheating and fraud etc. have been filed against them in the entire country.
It is submitted that the affidavit was ready and affirmed on 10.07.2020 but due to lockdown and pandemic situation, and also that the counsel for the applicant/petitioners had suffered an heart attack, as such, the order dated 05.03.2020 could not be complied with. Learned counsel submits that he has filed another application for placing on record the affidavit in compliance of the order dated 05.03.2020.
1 of 15 ::: Downloaded on - 13-07-2023 01:18:11 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -2- For the reasons mentioned in the application, the same is allowed and the order dated 18.08.2022 is hereby recalled and the petition is ordered to be restored to its original number and file.
CRM stands disposed of.
CRM-30100-2022 For the reasons mentioned in the application, the same is allowed and the affidavit, in compliance to the order dated 05.03.2020, filed by the applicant/petitioners is taken on record subject to just exceptions.
CRM stands disposed of.
CRM-M-20254-2018 (O&M) (1). This petition under Section 482 CrPC has been filed by the petitioners seeking quashing of the order dated 06.02.2018 (Annexure P6) whereby non-bailable warrants have been issued against the petitioners. He also seeks quashing of the orders dated 14.03.2018 and 18.04.2018 (Annexures P8 & P9), vide which his applications for exemption and for clubbing of 7 cases, as detailed in the headnote of the petition, have been dismissed.
(2). Petitioner No.1 is a private limited company whereas petitioner No.2 is its Director having registered office at Mumbai. The petitioners are dealing in purchase and exports of various types of perishable and non- perishable vegetables and other goods, from various State including the State of Punjab. The respondent is a trader dealing in vegetable goods. He contacted the petitioners and orally promised to supply vegetables with the condition that they shall deposit the token amount and also security cheques with respondent as advance for supply of goods. It is alleged that the 2 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -3- petitioners had deposited the cash amount in the accounts of respondent through RTGS transactions and also gave 20-25 security cheques to the respondent. In spite thereof, the respondent is said to have not delivered the goods. Ultimately, the petitioners requested back its security cheques as also the amount but the respondent did not do so.
(3). Thereafter, the respondent got issued notice under Section 138 of the Negotiable Instruments Act (Annexure P1) to grab amount from the petitioners to which the petitioners gave reply also on 29.05.2017 (Annexure P2). The respondent, thereafter, filed some 8 cases against the petitioners, at the same time and same court i.e. NACT No.3524/17, NACT No.3526/17, NACT No.3528/17, NACT No.3675/17, NACT No.3686/17, NACT No.3691/17, NACT No.4968/17, NACT No.4969/17.
(4). The petitioners approached the trial court and made an application for reducing the bail, with cash bail and clubbing of all the cases. It was also prayed in the application that the petitioners be exempted from attending the trial court due to ill health and back bone problem. The trial court issued non-bailable warrants to secure the presence of the petitioners, which remained unserved.
(5). However, counsel for the petitioners appeared before the trial court and submitted the medical certificate of the petitioners advising him complete bed rest and not to travel as he is suffering from severe back problem. The trial court, however, gave last opportunity to the petitioners to surrender failing which proclamation proceedings shall be initiated against the petitioners-accused. Hence, the present petition is preferring to club 7 3 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -4- cases and for quashing of the orders dated 06.02.2018 and 14.08.2018 passed by the trial court.
(6). Learned counsel for the petitioners contended that the respondent has launched false cases against the petitioners who are dealing in exports and imports being a legally registered company under the Companies Act and all the transactions are done through banking and the payments made to the respondent are evident from the record. (7). It is further contended that the issues arising for decision would be substantially common and almost the same set of oral and documentary evidence would be needed to adduce for the purpose of determining the issues of facts and law and thus, there will be duplication of records of evidence, if separate trials are allowed to be conducted and every possibility would be there that the trial court may record inconsistent findings with conflicting judgments. It is also averred that the consolidation of complaints would meet the ends of justice and save the parties from multiple litigation proceedings, delay and expenses. Reliance has been placed on S.Swamirathnam vs. State of Madras AIR 1957 SC 340, Srichand K.Khetwani vs. State of Maharashtra, AIR 1967 SC 450, to contend that the High Court has inherent powers to consolidate complaints in appropriate cases since the very nature of principle of consolidation implies that there is a similarity or identity of the matter in issues in different complaints between the same parties which should be decided by the court once and for all. (8). Notice of motion was issued on 11.05.2018 with a direction that the proceedings may go on, however, the passing of the final order shall remain stayed.
4 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -5- (9). The respondent-company filed reply dated 20.10.2018 while submitting that the petitioners are willfully not putting appearance before the trial court under the garb of being unwell as he has been travelling to different places and conducting his business. The trial court gave ample opportunity to the petitioners before issuing non-bailable warrants for his appearance who have till date not caused appearance. The petitioners are mandatorily required to appear before the trial court and furnish bail bonds before seeking any relief.
(10). It is further averred that the petitions are liable to be dismissed on the ground that it does not stand the test of legality. As a matter of law, the summoning order passed by Magistrate under Section 204 cannot necessarily be an interlocutory order thereby completely barring a revision petition against the same in view of Section 397(2) of CrPC which provides that powers of revision by sub-section (1) shall not be exercisable in relation to interlocutory order passed in appeal, inquiry, trial or other proceedings as has been held in Umakant Pandey vs. ACJM (1997)2 Crimes 27 (All). (11). Learned counsel for the respondent further urged that the petitioner has not come with clean hands as he is a habitual offender being prosecuted before various trial courts in different districts for similar offence. The petitioners have repeatedly issued cheques for different amounts to different suppliers without having sufficient balance in their account. Various cases under Section 138 of NI Act, are filed against the petitioners by various firms at Abohar, SBS Nagar, Amritsar etc. (12). Mr. Dhanda has further relied upon a news item (Annexure R1) reporting that the petitioner had been arrested by Meghwadi Police in August, 5 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -6- 2018, for cheating farmers in the States of Maharashtra, Karnataka, Punjab and other places of crores of rupees and willfully avoiding prosecution for similar offence.
(13). He further contended that this petition deserves to be dismissed being premature as there is no merit in praying for clubbing of complaints before this Court since the trial court has not expressly denied such relief. Reliance has been placed on City Auto Vijaywada vs. JK Industries, Hyderabad 2002 (1) RCC (AP) 706 to contend that each cause of action arose with dishonor of each different cheques on different dates and has been followed up independently. The separate complaints filed by the respondent represent separate criminal acts of the petitioners and the complainant/respondent has every right to seek separate remedy of such criminal act under Section 138 of NI Act and in conformity of Section 219 of CrPC which delimits such offence for the purpose of clubbing of a maximum number of three in 12 months' period.
(14). Lastly, it is averred by counsel for the respondent that the petitioner is intentionally absconding the process of law as is evident from the order of trial court dated 16.07.2018. The petitioner is playing mischief and is not appearing before the trial court on one pretext or the other and is moving application for cancellation/recalling of warrants on the ground of pendency of the present petition, as such claiming his presence to be not required.
(15). Heard learned counsel for the parties and gone through the case file.
6 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -7- (16). This Court directed the petitioners to file an affidavit disclosing as to how many complaints under Section 138 of Negotiable Instruments Act, or cheating and fraud etc. are there against them in the entire country. The petitioners have eventually filed an affidavit dated 10.07.2020, in para 5 thereof, it has been averred as under:-
"a) 138 (NIA) 8 cheques to his own brothers who run the firms in the name of M/s Swami Traders, the clubbing petition are pending in this Hon'ble Court in another court room. = No enforceable legal liabilities no goods are supplied to the petitioner company.
b) 138 (NIA) 2 cases at Abhore. = No enforceable legal liabilities no goods are supplied to the petitioner company.
c) 138 (NIA) 1 case at Amritsar. = No enforceable legal liabilities no goods are supplied to the petitioner company.
d) 138 (NIA) at Bijaypur = No enforceable legal liabilities no goods are supplied to the petitioner company.
e) 138 (NIA) at Sagar = No enforceable legal liabilities no goods are supplied to the petitioner company.
f) 138 (NIA) at Bombay = It is cheques purchased case by another firm..."
(17). Though the affidavit is wholly ill-drafted and incomprehensible yet it comes out that there are various cases pending against the petitioners under Section 138 of the NI Act at various places. It can be borne out that the petitioners have been dealing with many companies and had admittedly issued cheques, though may be as security, which on presentation, has been dishonoured resulting into the filing of the above-mentioned cases before various courts of law. Be that as it may, it is not the issue for consideration before this Court.
7 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -8- (18). In K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. [(1999) 7 SCC 510], the Supreme Court opined that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts, namely, (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice.
(19). It was observed that if five different acts were done in five different localities, any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and the complainant would be at liberty to file a complaint petition at any of those places.
(20). As regards the requirements of giving a notice as also receipt thereof by the accused, it was stated:-
"18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days "of the receipt" of the said notice. It is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. "
8 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 -9- (21). It is though imperative for this Court to borne in mind that so long as the cheque remains valid and unpaid there is a continuing obligation of the drawer to make good the same. It was further held in the case of K.R.Indira versus Dr.G.Adinarayana (2003) 8 SCC 300 by the Supreme Court that a consolidated notice which provides sufficient information envisaged by the statutory provision and there was a sufficient demand for the payment of same covered by the cheques so dishonoured and the mere fact that it was a consolidated notice, as in the present case, does not invalidate such an act of the complainant. More-so, the legislative intent as is evident from Section 138 of NI Act is that if, for the dishonoured cheque, the payment is not made within the prescribed days of the receipt of the notice, the drawer is liable for conviction and where the cheque amount is paid within this period or before the complaint is filed, the legal liability under Section 138 ceases to be operative. However, the fulfilment of the concatenation of the numbers of acts, so prescribed needs to be fulfilled. (22). Moreover, examining from another angle, as to the filing of separate complaints in respect of each dishonoured cheque, the Apex Court alarmed over the astronomical rise in cases instituted under the provisions of Section 138 of the Act in the case of Damodar S.Prabhu vs. Sayed Babalal H. (2010) 5 Supreme Court Cases 663, has sought to lay guidelines for the Courts below holding that invariably the provision of a strong criminal remedy has encouraged the institution of large number of cases that are relatable to the offences contemplated by Section 138 of the Act. (23). The large number of the cases is choking criminal justice system and has encouraged compounding of the offences even at belated stages. It 9 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 - 10 -
has also interpreted that the provisions of the Section 147 of the Act are enabling provisions and that of providing for such compounding of offences override the provisions of Section 320(9) CrPC. It has been stressed in Damodar S.Prabhu's case (supra), as under:-
"For instance, in the same transaction pertaining to a loan taken on an instalment basis to be repaid in equated monthly instalments, several cheques are taken which are dated for each monthly instalment and upon the 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 Cr.P.C. 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. (24). This Court in M/s Kumar Rubber Industries, Kapurthala versus Sohan Lal, 2002(2) RCR (Criminal) 111, while interpreting the provisions of Section 219 Cr.P.C. that clubbing of a number of cheques in the complaint cannot be a ground to quash the complaint, further holding the position enunciated in the case of Anita vs. Anil K.Mehara, 1996(1) RCR (Cri) 257, where reliance was placed upon another Supreme Court judgment in State of Andhra Pradesh vs. Kandimala Subbaiah and another AIR 1961 Supreme Court 1241 and the judgment of Delhi High Court reported as Stalion Shox Pvt.Ltd. Co. vs. Auto Tensions (P) Ltd., 1994 (1) RCR (Cri) 3,
10 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 - 11 -
that where firstly no prejudice has been caused to the accused by such a clubbing and there was one transaction and the dishonoured cheques form part of the same very transaction, the provisions of Section 219 Cr.P.C. will not be a bar to such a recourse.
(25). The definition "a transaction" as crops up is a group of facts connected together as to be referred to be a single name, as a crime, a wrong or any other subject of enquiry, which may be in issue. The group of facts constituting a transaction are so connected together as to involve certain ideas viz. unity, continuity and connection. The question whether series of acts are so connected together as to form the same transaction is a question of fact in each particular case depending upon the proximity of time, place, continuity of action and unity, purpose or design. Therefore, it is essential to look into such acts whether they are linked together to present a continuous whole. (26). Looking from another angle, the Court taking cognizance of the complaint under Section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. Undoubtedly, the drawer of the cheque gets an opportunity under Section 139 of the Act, to rebut the presumption at the trial and therefore, as has been laid down in M/s Modi Cements Ltd. Vs. Kuchil Kumar Nandi, AIR 1998 Supreme Court 1057, resorting to the exercise of the provisions of Section 482 Cr.P.C. in quashing the complaint has deemed it to be highly uncalled for. Similar views were expressed in the case of Chand Rattan Newar vs. Shaym Rattan Newar 2000(4) RCR (Criminal) 416 to the effect that it would be highly too preposterous to invoke the jurisdiction of this Court under Section 482 Cr.P.C. to quash a complaint barely on a single remiss as even at 11 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 - 12 -
the trial, complainant can exercise his discretion to choose before the trial Court the cheques on which he would prefer to maintain the complaint even if, it is accepted as per the contentions of the counsel for the complainant that provisions of Section 219 Cr.P.C. hold good in such an eventuality. (27). In the present situation, since all the cheques in the 8 cases have been simultaneously presented to the banker and dishonour so effected on the same very day for all the cheques, regarding which a consolidated notice has been issued calling upon the drawer to make good the payment of these cheques and as such, the same does not suffer from the vice of joinder of many offences in one trial. It is after the expiry of the period of the receipt of the notice, prescribed under Section 138 (c) of the Act, offence under Section 138 of the Act, is deemed to have been committed. Thus, by all means, the facts disclose as constituting only one offence and, therefore, Section 219 Cr.P.C, does not come into play.
(28). As per the allegations, the parties are into business of export and import of vegetables, in lieu of which it is claimed that these cheques have been issued by the petitioners. Though, these cheques may be of different dates and amounts, but the mere act of giving these cheques together have merged to form the same transaction especially when all the cheques have been presented together on a particular day as per the averments of the complainant coupled with the demand having been raised by the complainant through a consolidated notice giving rise to the same transaction as all these series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonouring the cheques on a different dates on the presentation of the same as per the request of the drawer.
12 of 15
::: Downloaded on - 13-07-2023 01:18:12 :::
Neutral Citation No:=2023:PHHC:086395
CRM-M-20254-2018 - 13 -
(29). Learned counsel for the respondent could not convince this
Court how or in what manner any prejudice has been caused to the petitioners by such alleged joinder/non-joinder of the cheques issued by him. Such complaint(s) will facilitate speedy trial of dishonour of so many cheques, saving precious time of the Courts by lessening their burden and thereby resulting in speedy dispensation of justice which is hallmark of obligation created by virtue of Articles 39A, 21 and 14 of the Constitution. (30). It is thus clear that in the case of dishonour of multiple cheques presented together for which a consolidated single notice has been issued, tantamounts to commission of a single offence under Section 138 of the Act, after the prescribed period of receipt of the notice on non-payment of the amount of the cheques, and, therefore, a single complaint will be maintainable for all these dishonoured cheques.
(31). In the present case, the petitioners have also challenged the impugned order dated 06.02.2018 whereby non-bailable warrants have been issued as also the orders dated 14.03.2018 and 18.04.2018. It is apposite to mention here that non-bailable warrants were issued against the petitioners but the same having not been received back served, the trial court observed that the application for exemption from personal appearance of the accused and cancellation of warrants issued against the petitioner is not maintainable. It comes out that the petitioner has been dilly-dallying the proceedings before the trial court on the pretext that he is having back problem and has even managed to procure medical certificate from a psychotherapist. It is indigestible that for ailment treatable by orthopaedician, the petitioner has procured certificate from psycho-therapist which itself shows that the 13 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 - 14 -
petitioner is browbeating the process of law and taking it for granted which cannot be allowed by this Court at any rate. Non-bailable warrants were issued against the petitioner, yet he did not appear before the court below and deliberately and knowingly flouted the orders of the trial court. It is well settled principle of law that a person, who has been absconding/evading the service of non-bailable warrants, is not entitled to any relief/bail by any court of law.
(32). The trial court cannot proceed with the prayer of the petitioners for clubbing of the complaints unless the accused/petitioner present himself and appears before the trial court, furnishes bail bonds and is served with the notice of accusation. There was no occasion for the trial court to have considered the prayer of the petitioners regarding clubbing of complaints, which has otherwise been dealt with in detail by this Court. (33). Accordingly, this petition is partly allowed and the order dated 06.02.2018 (Annexure P6) issuing non-bailable warrants as well as the orders dated 14.03.2018 and 18.04.2018 rejecting the applications for exemption and for clubbing of 7 cases, are quashed, however, subject to the condition that the petitioner shall appear before the trial court within a period of 2 weeks from today. The petitioners shall be at liberty to move an application for grant of bail and the trial court shall decide it on the same very day keeping in view of the observations made hereinabove.
(34). As far as the issue of clubbing of all the complaints is concerned, though a detailed discussion has been made hereinabove supported with case laws on the issue, once the petitioners surrender before the trial court and join the proceedings, the right to seek clubbing of all the 14 of 15 ::: Downloaded on - 13-07-2023 01:18:12 ::: Neutral Citation No:=2023:PHHC:086395 CRM-M-20254-2018 - 15 -
complaints would accrue and therefore, the trial court shall decide the application for clubbing of all the 7 complaints afresh, expeditiously, in accordance with law.
(35). However, since due to the act and conduct of the petitioners, the trial court has wasted its precious time who has been avoiding the appearance despite issuance of non-bailable warrants on one or the other pretext which could not convince this Court but in the larger interest, the orders (P6, P8 & P9) are set aside by this Court, which shall be subject to petitioners' depositing cost of Rs.50,000/- to be paid to the complainant before the trial, on the date of appearance.
11.07.2023 (Sandeep Moudgil) V.Vishal Judge
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No Neutral Citation No:=2023:PHHC:086395 15 of 15 ::: Downloaded on - 13-07-2023 01:18:12 :::