Madhya Pradesh High Court
Manoj Jain vs Naveen Kumar Jain on 3 August, 2017
M.Cr.C.No.19603/2016
03/08/2017
Shri DK. Upadhyaya, learned counsel for the
applicant.
Shri Yogesh Kumar Chourasiya, learned counsel for
respondent No.1.
Shri AK. Sharma, learned G.A. for respondent No.2/State.
This petition under Section 482 of the Cr.P.C. has been filed against the order dated 11/08/16 passed by learned Sessions Judge, Tikamgarh in Criminal Revision No.40062/2016, whereby learned Sessions Judge rejected the applicant's criminal revision and affirmed the order dated 26/05/2016 passed by Judicial Magistrate, First Class, Tikamgarh in Criminal Case No.255/2012, whereby learned JMFC, rejected the applicant's application filed under Section 219 of the Cr.P.C.
Brief facts of the case relevant to the disposal of the petition are that the applicant is facing trial in Criminal Case Nos.255/12 & 1937/11 for the offence punishable under Section 138 of the Negotiable Instruments Act, which were registered on the complaint of non-applicant no.1 and are pending before Judicial Magistrate, First Class, Tikamgarh. During trial of Criminal Case No.255/12 the applicant/accused filed an application under Section 219 of the Cr.P.C. averring that as the Criminal Case Nos.255/12 and 1937/11 are similar in nature and are registered on the complaint of same complainant (non-applicant no.1) and both the offence alleged to be occurred within one year, therefore, both the cases be tried together. Non-applicant opposed the prayer. Learned trial Court vide order dated 26/05/16 rejected the application observing that in Criminal Case No.1937/11 charge has been framed and the same is fixed for evidence of the non-applicant no.1 and because in both the cases charge has been framed, it is not appropriate to consolidate both the cases. Being aggrieved, the applicant filed Criminal Revision No.400062/16, which was also rejected by the Sessions Judge, Tikamgarh by order dated 11/08/16. Being aggrieved by the impugned order, present petition has been filed.
Learned counsel for the applicant submitted that according to Section 219 of the Cr.P.C. offence of same nature committed within one year be tried together. Both the Criminal Case Nos. 255/12 & 1937/11 are pending before Judicial Magistrate, First Class. In both the cases charge under Section 138 of the Negotiable Instruments Act has been framed against the applicant and both the cases have been registered by the trial Court on the complaint of same complainant (non-applicant). So, learned trial Court committed mistake in not consolidating both the cases. In this regard learned counsel placed reliance on a judgment of Hon'ble Apex Court in the case of State of Punjab & another Vs. Rajesh Syal, AIR 2002 Supreme Court 3687.
Learned counsel for respondent No.2 opposed the prayer stating that because the charge has already been framed in both the cases, therefore, learned trial Court did not commit any mistake in rejecting the application.
This Court has gone through the arguments put forth by both the parties.
Section 219 of the Cr.P.C. reads as under :-
"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.
(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 law:
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.
From perusal of Section 219 of the Cr.P.C. it 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 under Section 219 of the Cr.P.C. is a discretionary. This section apparently merely authorised combination of three offences in one trial. It does not bar a separate criminal trial of an accused for each separate offence. It is not necessary that the matters are to be clubbed together when the accused filed an application. It depends upon the circumstances of the case.
In this case, in both the cases charge has been framed and the cases are at the stage of recording of evidence. No such application under Section 219 of the Cr.P.C. was moved by the applicant/accused at the initial stage before framing of charge. The applicant/accused filed the application at the stage of complainant's evidence, without justification of delay.
So far as the judgment of Hon'ble Apex Court passed in the case of State of Punjab & another Vs. Rajesh Syal (supra) is concerned, facts of the case do not match with the present case, in the present case non- applicant/complainant has filed two different complaints for dishonour of two different cheques, therefore, the same does not help much to the applicant. In the considered opinion of this Court learned Courts below did not commit any mistake in rejecting the application filed by the applicant under Section 219 of the Cr.P.C.
Hence, petition has no force and is hereby dismissed.
(Rajeev Kumar Dubey) Judge as/