Uttarakhand High Court
M/S. Amar Saheed Gajendra Singh vs State Of Uttarakhand & Another on 29 March, 2019
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 258 of 2013
M/s. Amar Saheed Gajendra Singh. .....Revisionist
Versus
State of Uttarakhand & another. .......Respondents
Mr. D.K. Tyagi, Advocate for the revisionist.
Mr. Pratiroop Pandey, A.G.A. for the State of Uttarakhand/respondent no.1.
There is no representation for respondent no. 2.
Dated: 29th March, 2019
Hon'ble Manoj K. Tiwari, J.
This Criminal Revision under Section 397 read with 401 Cr.P.C. has been filed challenging the judgment & order dated 13.09.2013 passed by learned IIIrd Additional Sessions Judge, Haridwar in Criminal Appeal No. 36 of 2013, whereby the conviction recorded by learned Additional Civil Judge (Senior Division)/Judicial Magistrate, Haridwar against respondent no. 2 has been set aside and the matter has been remanded to learned Trial Court for de novo trial.
2. The revisionist is proprietor of a Petrol Pump. According to the revisionist, he had supplied petrol and diesel on credit to respondent no. 2. Respondent no. 2 issued five cheques amounting to ` 1,54,000/- for payment of price of petrol and diesel to the revisionist. All the five cheques when presented before the Bank were dishonored, therefore, the revisionist issued a notice to respondent no. 2 under proviso (b) to Section 138 of Negotiable Instruments Act, on 01.10.2011. Thereafter, a complaint was filed by the revisionist under Section 138 Negotiable Instruments Act, which was 2 allowed by learned trial Court vide judgment & order dated 25.02.2013. Respondent No. 2 was held guilty, therefore, he was sentenced for one year. It was further provided that respondent no. 2 shall pay a sum of ` 1,70,000/- to the revisionist. Thus, feeling aggrieved, respondent no. 2 filed an Appeal, which was registered as Criminal Appeal No. 36 of 2013. The said appeal has been allowed by learned IIIrd Additional Sessions Judge, Haridwar vide judgment & order dated 13.09.2013, which is under challenge in this Criminal Revision.
3. A bare perusal of the impugned judgment passed by the learned Appellate Court reveals that the Appeal filed by respondent no. 2 was allowed only on the ground that, in view of the provision contained under Section 219 of Cr.P.C., more than three cheques cannot be clubbed together for filing a complaint under Section 138 of Negotiable Instruments Act. Learned Court below had relied upon a judgment rendered by Single Judge of Hon'ble Madras High Court in the case of M/s. Printo Stick Vs. M.L. Oswal, reported in 1997 Criminal Law Journal 2122.
4. Subsequently, in the case of Manjula Vs. Colgate Palmolive (India) Ltd., reported in 2007 (1) DCR 192, a Division Bench of Hon'ble Madras High Court, on a reference being made, has overruled the view taken in the case of M/s. Printo Stick (Supra) and has held as under:
"12. The above said 16 cheques were drawn on different dates and they were for different amounts, but, they were presented together for payment and were dishonoured and a single notice was sent by the complainant to the drawer. The general rule is that every 3 distinct offence of which a person is accused, there shall be separate charge and every such charge shall be tried separately. As observed by the Division Bench of the Kerala High Court in 1996 (3) Crimes 283 (cited supra), Section 219 Cr.P.C. is an exception to the general rule. As stated earlier, even though different cheques were given on different dates, the presentation of all those cheques formed the same transaction.
Further, the demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands for the payment of the dishonoured cheques. In those circumstances, we are of the view that the petitioner/accused herein may be charged and tried at one trial for several such offences, because, the series of acts are so inter-linked or inter-connected.
13. The very object of Section 219 is to prevent miscarriage of justice by clubbing together a number of offences and making it impossible for the accused to defend them. Sections 219 and 220 Cr.P.C. lay down different and distinct exception to the general rule contemplated under Section 218 Cr.P.C. in framing charges. We are of the view that the number of three offences underlined in Section 219 of the Code cannot control Section 220(1) of the Code.
14. In the instant case, the offences committed by the same person in respect of 16 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. In such circumstances, it is easy to conclude that the offences under Section 138 of the Act in respect of those cheques can be held to be offences committed in the course of same transaction. Section 219 (1) Cr.P.C. refers to identical offences committed on different dates during a span of 12 months. It permit joinder of those charges provided they are offences of the same kind.
15. In these circumstances, we hold that Section 219(1) Cr.P.C. permits joinder of 4 all charges provided they are offences of the same kind. We are also of the view that the number of transactions and the cheques issued prior to the issuance of the statutory notice under Section 138(b) of the Act could at best be considered as bundle of facts giving rise to a cause of action and that it is not a ground to quash the criminal proceedings against the drawer of the cheques. We further hold that if the offences are of the same kind, the number of transactions between the parties which culminated into issuance of the statutory notice is no ground to urge that under Section 219 Cr.P.C., the prosecution laid against the petitioner is not maintainable.
16. In the case on hand, though the act of issuance of 16 cheques was on different dates, in view of the fact that a demand was made by issuing a common notice, the complaint cannot be said to be vitiated. To put it clear, though the giving of cheques by the accused to the complainant may be on different dates, all those acts of giving those cheques were merged together to form the same transaction viz., the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands, we are of the view that the accused may be charged and tried at one trial for several such offences because the series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonouring the cheques, therefore, it cannot be said that the complaint is vitiated.
17. We answer the question raised accordingly. Consequently, the Criminal Original Petition is dismissed."
5. A Coordinate Bench of this Court in the case of Prashant Sharma Vs. Dheeraj Sharma, reported in 2013 (2) U.D. 354, has followed the view taken by Division Bench of Hon'ble Madras High Court in the case of Manjula (Supra). Paragraph nos. 14, 15 & 16 of the 5 Judgment rendered in the case of Prashant Sharma (Supra) are extracted below:-
"14. It seems that Gujrat High Court took the view in the background that three were different legal notices and cheques were in discharge of two different transactions. However, before the Madras High Court composite lawyer's notice was got issued for different cheques, which were dishonoured together on presentation together.
15. In the present case too, cheques were issued in discharge of financial liability under the agreement dated 11.06.2010 presented together, dishonoured together therefore, composite lawyer's notice was issued and composite complaint was filed.
16. In view of the facts as narrated hereinabove, present case is fully covered by the judgment of Division Bench of Madras High Court, therefore, second argument raised by Mr. Parikshit Saini, also stands rejected. Consequently, both the petition fail and are dismissed. Let copy of this judgment be placed in the connected petition."
6. Since, the Appeal filed by respondent no. 2 was allowed by IIIrd Additional Sessions Judge, Haridwar, only on the ground that more than three cheques cannot be clubbed together for filing a complaint, which is contrary to the view taken by Coordinate Bench of this Court as well as Division Bench of Hon'ble Madras High Court. Therefore, the impugned judgment dated 13.09.2013 cannot be sustained and the same is set aside. The matter is remitted back to learned Appellate Court to decide the Appeal afresh in accordance with law.
(Manoj K. Tiwari J.) 29.03.2019 NEHA