Delhi District Court
Hkk Buildwell Pvt. Ltd vs . Kaliber Associates Pvt. Ltd. on 6 April, 2015
CR No. 66/14. HKK Buildwell Pvt. Ltd. & Others
Vs. Kaliber Associates Pvt. Ltd.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
CR No. 66/2014.
1. HKK Buildwell Pvt. Ltd.,
Having its Registered office at
F1/, Okhla Industrial Area,
Phase1, New Delhi110020.
Through Sh. Sanjay Gambhir.
2. Sanjay Gambhir
3. Reena Gambhir,
W/o Sh. Sanjay Gambhir,
Both revisionists no. 2 and 3,
R/o N56, Panchsheel Park,
New Delhi110017. ... Revisionists.
Vs.
Kaliber Associates Pvt. Ltd.,
Having its Registered Office at
E20, Lajpat Nagar, PartIII,
New Delhi110024.
Through its Authorized Representative
Sh. M.C. Jain. ... Respondent.
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CR No. 66/14. HKK Buildwell Pvt. Ltd. & Others Vs. Kaliber Associates Pvt. Ltd.
Date of Institution. : 29.11.2014. Date of Arguments. : 30.3.2015. Date of Order. : 6.4.2015. 6.4.2015. Present: Sh. Amit Chahar, ld. proxy counsel for main counsel
Sh. Hemant Shah, for revisionistsaccused persons. Sh. P.H.L. Bhatnagar, appeared on behalf of the respondentcomplainant.
The present criminal revision petition is fixed for order for today.
Arguments on the present revision petition were addressed by Sh. Hemant Shah, ld. counsel for revisionists and Sh. B.P. Lathwal, ld. counsel for respondent, on 30.3.2015.
The parties have not filed brief written submissions inspite of grant of opportunity vide order dated 30.3.2015.
Perused the entire record including TCRs of complaint cases bearing CC Nos. 5946/14, 833/12, 5948/14, 5947/14 and 5945/14.
1. The challenge in the present criminal revision petition u/s 397 r/w/s 399 CrPC filed by all the original three accused persons (revisionists herein), is to the impugned order dated Page No. 2 of 14. Contd... ... ...
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15.11.2014 passed by Sh. Arun Goel, ld. MM (NI Act)2, Dwarka Courts, Delhi, in complaint case bearing CC No. 5948/14, titled as "Kaliber Associates Pvt. Ltd. Vs. HKK Buildwell Pvt. Ltd. & Others", whereby the ld. Trial Court dismissed the application u/s 219 CrPC of the revisionists for clubbing the three connected complaint cases bearing CC No. 5948/14, 5946/14 and 833/12, u/s 138 NI Act before the said Court.
2. Ld. counsel for revisionists had argued that the revisionists were arraigned as accused persons in five complaint cases u/s 138 NI Act pending before the ld. Trial Court. He had further submitted that in the said cases, the averments and allegations made by the original complainant, are arising out of the same transaction and all the accused persons are similar in the aforesaid matters. It is further the case of the revisionists that on 15.11.2014, the ld. counsel for revisionists had appeared before the ld. Trial Court and had filed his vakalatnama alongwith an application u/s 219 CrPC to club all the aforesaid three matters, but the ld. Trial Court dismissed the said application vide impugned order. Ld. counsel for revisionists had further contended that because of the impugned order of the ld. Trial Court, great prejudice has been caused to the revisionists as they have been subjected to separate trial in Page No. 3 of 14. Contd... ... ...
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aforesaid three cases, whereas had the application been allowed, no prejudice would have been caused to the respondent (original complainant). He had further submitted that only one application u/s 219 CrPC was moved by the revisionists in complaint case bearing CC No. 5948/14, but on the insistence instance of the ld. Trial Court, two similar applications were moved in aforesaid two connected cases for clubbing of all the three cases together.
3. Ld. counsel for respondent had submitted that out of the aforesaid total five cases, two cases are fixed for judgment, one case is fixed for statement of accused u/s 313 CrPC, one case is fixed for cross examination of CW1 in post notice evidence and last case is fixed for framing of notice/post notice complainant's evidence and thus in three of the cases since complainant's evidence has already been culminated, therefore the revisionists have already disclosed their defence and hence there is no chance of any prejudice to the revisionists. He had further submitted that the five cases cannot be said to be on the basis of one transaction and that the complainants in all the five cases except two, are different and different complainant witnesses have been examined in the said respective cases. He had further submitted that the revisionists are indulging in Page No. 4 of 14. Contd... ... ...
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delaying tactics and the application u/s 219 CrPC was nothing, but another attempt to delay the matters when three of them have reached final stage. He had relied upon the judgment of Hon'ble Supreme Court in Writ Petition (Civil) No. 18/2013, titled as "Indian Bank Association & Others Vs. Union of India & Others".
4. The impugned order is reproduced below: "C.C. No. 5946/14, 833/12 15.11.2014 Present: Shri B. P. Lathwal, ld. counsel for the complainant.
Ld. counsel for the accused alongwith accused no. 2 and 3 in persons.
Matter is at the stage of final arguments. An application u/s 219 CrPC filed on behalf of the accused for clubbing the matter CC No. 5948/14, 5946/14, 833/12 submitting that the matter pertain to the same transaction and they may be clubbed together. Ld. counsel for the complainant opposed this application states that in CC No. 5946/14 and CC No. 833/12 matters are at the stage of final arguments but in case CC No. 5948/14 matter is at the stage of recording statement of accused u/s 313 CrPC. It is submitted on behalf Ld. counsel for the Page No. 5 of 14. Contd... ... ...
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complainant that the present application filed on behalf of the accused for the purpose of delaying the proceedings. Heard.
Section 219 CrPC provides that: "When a person is accused of more offences than one of the same kind committed within 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."
Perusal of Section 219 CrPC reveals that the court can try more than one offence but not exceeding three together if they are committed in the period of one year. But the power u/s 219 CrPC is a discretionary. It is not necessary that the matter are to be clubbed together when the accused files an application. It depends upon the circumstances of the case.
In this case, it is relevant to mention that the matter are at different stages of trial. In CC No. 5946/14 and 833/12, matter is at the stage of final arguments while in CC No. 5948/14, matter is at the stage of recording the statement of accused u/s 313 CrPC. It is also relevant to mention that there were five cases pending against the accused in different courts complex of Delhi. The accused had filed a transfer petition before the Hon'ble Delhi High Court for trying the matter in one court. The Delhi High Page No. 6 of 14. Contd... ... ...
CR No. 66/14. HKK Buildwell Pvt. Ltd. & Others Vs. Kaliber Associates Pvt. Ltd.
Court through his order had transferred all the matters in the court of undersigned.
Perusal of case reveals that the accused in the present case has been unnecessary delaying the case. The matter are more than five year old. The accused if he was diligent could have move this application alongwith transfer petition. It appears that the present application is for the purpose of unnecessary delaying the matter in the present case. The court is not inclined to exercise the power u/s 219 CrPC as the matter are at different stages of trial. Accordingly, present application stands dismissed.
Put up for final arguments today at 2:00 PM.
Copy of this order be given to dasti free of cost to the accused.
(Arun Goel) MM (NI Act) 02 15.11.2014"
5. On bare perusal of the aforesaid cases, it is clear that the name of the complainants in all the five cases except two cases, are different. Further the dates of cheques in aforesaid three cases (sought to be clubbed), the dates of legal notices of demand, the dates of filing of said complaints and dates of affidavits of pre summoning evidence in the same are different.
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Further out of three cases sought to be clubbed, one complaint case bearing CC No. 5946/14 is at the stage of judgment, second complaint case bearing CC No. 5948/14 is at the stage of statement of accused u/s 313 CrPC and third complaint case bearing CC No. 5947/14 is at the stage of cross examination of CW1 in post notice evidence. Further admittedly no such application u/s 219 CrPC was moved by the revisionists at the initial stage and rather the same were moved very belatedly, without any justification for delay. Also out of the three cases sought to be clubbed, in two cases, the complainant's evidence is already complete and thus the revisionists must have already disclosed their defence in cross examination of original complainant's witnesses by giving relevant suggestions. Only one complaint case bearing CC No. 5947/14, out of the said three cases is at the stage of post notice evidence of original complainant. Disclosing of evidence in the said case is not going to prejudice the revisionists in any way in the remaining two aforesaid cases, which are at advanced stages. Also the original complainant witness is different in complaint case bearing CC No. 5948/14 compared to remaining two cases.
6. In the case of "M/s Nova Vision Electronics Pvt. Ltd.
& Another Vs. State & Another", Crl. MC Nos. 3773/2008, Page No. 8 of 14. Contd... ... ...
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3774/2008, 3788/2008, 3789/2008, 3790/2008, 3791/2008 and 3792/2008, Hon'ble Delhi High Court held as under: "8. A brief overview of the provisions of Sections 218 to 224 would show that the submissions of the learned counsel for the petitioners is completely untenable. The general rule is that the accused should be charged in respect of each distinct offence alleged to have been committed by him and he is entitled to a separate trial with respect to each of such charge in accordance with the provisions of Section 218 of the Cr.P.C. The exceptions culled out in Sections 219 and 220 apply to a situation as indicated above, where the same person is accused of more offences than one of the same kind committed within a time frame of 12 months taken from the first to the last of such offences. The limiting factor being that they cannot exceed three (3), and the Court cannot order a single trial in respect of more than three (3) such offences with which the accused is charged. As mentioned Crl. M.C. 3773/2009 Page 13 of 21 hereinabove, in the facts of the present case the same is clearly not applicable. The petitioners on their own showing are the accused in seven (7) cases. As regards the learned counsel‟s submission with respect to the applicability of Section 220 of the Cr.P.C., in my view, the same is again without merits. For Section 220 of the Cr.P.C. to apply, it is important that series of acts which comprise of several offences are connected in a manner that they form one continuous whole i.e., one single transaction. In the Page No. 9 of 14. Contd... ... ...
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instant case, it is not disputed by the petitioners that thirteen (13) cheques of different dates were issued by the petitioners. The said cheques were presented by the respondent no.2 once again on different dates. The dates of dishonour of the said cheques are also different and as a matter of fact, not only the information with respect to dishonour was received on different dates but also the legal notices issued in respect of dishonour of each of the said cheques also carried different dates. Importantly, from the averments made in the petition, it is clear that the said cheques were issued by the petitioners to respondent no.2 with respect to separate purchase transactions. In my view, the provisions of Section 220 of the Cr.P.C. are not applicable to the facts and circumstances of the present case as each transaction was separate. The transactions were not interconnected as a continuous whole so as to form one single transaction. Each purchase transaction being separate there was no continuity of action and each act was complete by itself. See Nanak Chand & Ors. vs Emperor: AIR 1924 Lahore 734 at Page 737 (C2) & Page 738 (C1); Shapurji Sorabji & Anr. vs Emperor: AIR Crl. M.C. 3773/2009 Page 14 of 21 1936 Bombay 154 at Page 157 (C1) and Page 158 (C1); Ramchandra Rango vs Emperor: AIR 1939 Bombay 129; also See Keshavlal vs Emperor: AIR (31) 1944 Bombay 306 at 311; Rajendra B. Chaudhary vs State of Maharashtra & Anr.: AIR (2007) NOC 418.
8.1 I am also of the view that Section 220 of the Cr.P.C. is only an enabling provision. If the Court were to hold separate trials, it would not result in any illegality. As a matter of fact, the Court unless it is Page No. 10 of 14. Contd... ... ...
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very clear as to whether the offences would fall within the ambit of the provisions mentioned hereinabove, it should not take undue risk of holding a joint trial keeping in mind the interest of the accused. See T.B. Mukherjee vs State: AIR 1954 All 501 at Page 503 (Paragraph 3)."
7. Hon'ble Karnataka High Court in the case titled as "M/s. Shanthi Fortune (India) & Another Vs. M/s. Mukka Sea Foods Industries", Criminal Revision Petition No. 231/2014, in para nos. 4, 5 and 6 mentioned as under: "4. ... Reliance is placed on a decision of this court in the case of Tiruchandoor Muruhan Spinning Mills (P) Ltd. v. Madanlal Ramkumar Cotton and General Merchants, (2001) 107 Company Cases 597, wherein it is held that there is no bar to lodge a single complaint in respect of more than one offence punishable under Section 138 of the NI Act. That it is to the advantage of the accused and not to his disadvantage. Further, it is held that Section 219 of the Cr.P.C., would not apply to proceedings under Section 138 of the NI Act.
5. ... It has also been held by the Apex court that Section 220 is an enabling provision, which permits the court to try more than one offence in one trial. The court may or may not try all the offences together in one trial. (See: Mohinder Singh v. State of Punjab, ( (1998)7 SCC 390).
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6. In the light of the above principles and views expressed by the Apex court, in the facts and circumstances of the present case on hand the transaction of supply of steam sterilized fish meal was spread over a period of time. The parties by their correspondence have treated the transaction as one, as the total amount claimed as outstanding is a single consolidated amount. The several cheques issued, albeit spread over a period of five months, was in respect of that outstanding amount. It could hence be said that the cheques were issued in respect of the 'same transaction', as contemplated by the apex court in the case of Chemalapati Ganeshwara Rao, supra.
The separate complaints were however, identical and it could not be said that it had the effect of bewildering the accused, in the same having been combined in one trial. In any event the accused did not complain of any prejudice thereby, at any stage of the proceeding, except in the present proceedings. The consolidation has in fact rendered the proceedings less cumbersome, more convenient and has avoided duplicity, effort and expense . And most important of all has saved precious court time, which otherwise would have been eaten into , in several trials being conducted.
It is clear that there is no illegality in the trial court proceeding to conduct a common trial in respect of 18 distinct complaints, having regard to the facts and circumstances of the case. That aspect, namely, the facts and circumstances in any given case or Page No. 12 of 14. Contd... ... ...
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cases, would be the key. The trial court in a given case should form a clear view that the several complaints are indeed in respect of the same transaction and that no prejudice would be caused to the accused in adopting such a procedure, or in entertaining a single complaint in respect of several offences punishable under Section 138 of the NI Act.
Other incidental grounds urged are not significant and do not merit consideration. The Petitions are dismissed. "
8. In view of the aforesaid discussions and the case laws cited above, I am of the considered opinion that there is no infirmity, illegality or perversity in the impugned order.
Accordingly the revision petition is dismissed.
9. Ld. proxy counsel for revisionists has undertaken that the previous cost of Rs. 5,000/ imposed upon the revisionist vide order dated 30.3.2015, shall be paid to the respondent, before the ld. Trial Court. The revisionists are directed to comply with the said order on NDOH before the ld. Trial Court.
10. A copy of this order alongwith TCRs be sent back to the ld. Trial Court for further proceedings as per law for 13.4.2015 at 10.00 am (as stated by the ld. proxy counsel for Page No. 13 of 14. Contd... ... ...
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revisionists).
11. Revision petition file be consigned to record room.
Announced in the open Court on 6.4.2015.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 14 of 14. Contd... ... ...