Charu Chemical And Techno Ltd. and Others vs State of Gujarat and Another

M.R. Shah, J.—As common question of law and facts arise in these group of petitions they are disposed of by this common judgment and order.

By way of these petitions under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure respective Petitioners-original accused of Criminal Case Nos. 10763/2009 to 10765/2009 pending in the Court of learned 13th Additional Chief Judicial Magistrate, Vadodara have prayed for an appropriate order to quash and set aside the impugned order passed by the learned trial Court by which the learned trial Court has dismissed the applications submitted by the respective Petitioners to conduct the trial of the aforesaid Criminal Cases jointly, which further came to be confirmed by the learned revisional Court.

Criminal Complaint, being Criminal Case No. 10763/2009 to 10765/2009 have been filed against the respective Petitioners for the offences punishable u/s 138 of the Negotiable Instruments Act, which are pending in the Court of learned 13th Additional Chief Judicial Magistrate, Vadodara. Respective Petitioners original accused submitted applications in aforesaid Criminal Cases requesting to conduct the joint trial of the aforesaid Criminal Cases in exercise of powers under Sections 219 and 220 of the Code of Criminal Procedure by contending interalia that all the aforesaid Criminal Cases arise out of the same transaction and the cheques in question for which the aforesaid Complaints have been filed arise out of the same transaction. All the aforesaid applications came to be dismissed by the learned trial Court vide order dated 05/05/2010. Being aggrieved and dissatisfied with the order passed by the learned 13th Additional Chief Judicial Magistrate, Vadodara in rejecting the applications submitted by the respective Petitioners for conducting the trial jointly of the aforesaid Criminal Cases respective Petitioners preferred Criminal Revision Application Nos. 173 to 175 of 2010 before the learned revisional Court and the learned Presiding Officer, Fast Tract Court No. 4, Vadodara vide impugned judgment and order dated 21/09/2010 dismissed the applications confirming the order passed by the learned trial Court. Hence, the respective Petitioners-original accused have preferred the present Special Criminal Applications for the aforesaid relief.

Shri Majmudar, learned advocate appearing on behalf of the respective Petitioners-original accused has vehemently submitted that both the Courts below have materially erred in rejecting the applications submitted by the respective Petitioners to conduct the joint trial of the aforesaid Cases. It is submitted that considering Section 219 and 220 of the Code of Criminal Procedure when all the aforesaid Criminal Cases arise out of the same transaction and the cheques in question for which the aforesaid Criminal Cases have been filed arise out of the same transaction, as per Section 219 of the Code of Criminal Procedure joint trial of the aforesaid Criminal Cases is permissible and, therefore, it is requested to allow the present petitions by directing the learned Magistrate to conduct the joint trial of the aforesaid Criminal Cases, which according to the respective Petitioners arise out of the same transaction.

All these petitions are opposed by Shri L.R. Poojari as well as Shri K.P. Raval, learned AP Ps appearing on behalf of the respective Respondent in respective Special Criminal Applications. It is submitted that as such the controversy raised in the present Special Criminal Applications is squarely covered by the decision of the Division Bench of this Court in the case of Kershi Pirozha Bhagvagar v. State of Gujarat And Anr. reported in 2007 (2) GLH 493 and, therefore, it is requested to dismiss the present petitions.

Heard the learned advocates appearing on behalf of the respective parties. The contention on behalf of the respective Petitioners is that all the three cheques, which are dishonoured, for which three different Criminal Complaints/Cases are filed arise out of the same transaction and, therefore, considering Section 219 of the Code of Criminal Procedure the trial of the aforesaid Criminal Cases are required to be conducted jointly. Identical question came to be considered by the Division Bench in the case of KERSHI PIROZHA BHAGVAGAR(Supra). In the case before the Division Bench the question was with respect to three cheques and consequently three trial/Cases and similar contentions were raised, which has been negatived by the Division Bench on interpretation of Sections 4, 218, 219, 220 and 221 of the Code of Criminal Procedure the aforesaid offence deals with "offences" and not with the "transactions".

6.1. In paragraph Nos. 19 to 22 the Division Bench has observed and held as under;

Having held that the provisions of Section 219 of the Code are applicable to trials under the N.I. Act, this Court will now have to examine whether, on the facts and in the circumstances of the case, the provisions of Section 219 of the Code can be invoked by the Petitioner. In order to determine this question, the provisions of Section 219 of the Code will have to be scrutinized. Section 218 - 224 occur in Chapter XVII-B titled as "Joinder of Charges". All sections deal with the same subject but contemplate different situations for their applicability and set out different aspects of the same subject-matter, i.e."Joinder of Charges". Section 219 of the Code contemplates the commission of three offences of the same kind within a span of 12 months from the first to the last of such offences, whether in respect of the same person or not which can be tried together at one trial. Sub-section (2) of Section 219 of the Code explains that 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 laws. What is material is that Section 219 of the Code speaks of "offences" and not "transactions" or "acts". Section 219 of the Code deals with offenes of the same kind whereas Section 218 deals with separate charges for distinct offences. Section 220 of the Code deals with trial for more than one offence and provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Section 221 of the Code deals with a situation where it is doubtful as to what offence has been committed. Section 222 of the Code deals with a situation when offence proved was included in offence charged. A conjoint reading of Sections 218 - 220 of the Code makes it very clear that three different situations are contemplated by the Legislature in order to make the provisions of these three Sections applicable.Section 218 of the Code clearly specifies that there shall be a separate charge for every distinct offence and an accused shall be tried separately in respect of every such charge. Section 219 of the Code prescribes the situation in which three offences of the same kind within a year may be charged together, and Section 220 of the Code further prescribes that at one trial, an accused may be tried for more than one offence in one series of Acts so connected together to form the same transaction. Sections 219 - 223 contain exceptions to the rule enacted in Section 218 of the Code. Under the proviso to Section 218, jurisdiction has been vested that if such a person is not likely to be prejudiced, then all or any number of charges framed against such a person may be tried together. Under Sub-section (2) of Section 218 it has been clarified that the Section would not affect the operation of the provisions of Sections 219, 220, 221 and 223.

Examining the facts of the present case in the light of the above provisions of the Code, it cannot be denied that in Special Criminal Application No. 1261 of 2005 four different cheques were presented for encashment and all of them bounced, leading to the filing of two complaints. The dishonour of every cheque will give rise to a distinct offence, triable and punishable u/s 138 of the N.I. Act. It cannot be lost sight of the fact that Section 219 of the Code refers to "offences" and not to "transactions" or "acts". Section 219 will be applicable to offences committed in the course of a span of 12 months provided that the offences are of the same kind and do not exceed three in number. The argument of the learned Counsel for the Petitioner that all the four cheques which were ultimately dishounoured were in the course of the same transaction cannot, therefore, be accepted since the dishonour of each cheque gives rise to a distinct cause of action and commission of a separate alleged offence.

21 In order to analyse whether dishonour of a cheque constitutes a distinct offence, it would be useful to refer to the provisions of Section 138 of the N.I. Act. Section 138 reads as under;

Dishonour of cheque for insufficiency, etc. of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this Section shall apply unless

(a) the cheque has been, presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation:

For the purposes of this section, "debt or other liability" means a legally enforceable debts or other liability.

The essential requirements of Section 138 of the N.I. Act are that (1) there should be a cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person in discharge of any debt or liability, in whole or in part, (2) the cheque should be presented to the banker, (3) it should be dishonoured, i.e. returned by the bank unpaid, either because of the amount of money standing to the credit of that account being insufficient to honour them or for the reason that it exceeds the amount arranged to be paid from that account. In case of dishonour, a notice in writing is issued to the drawer of the cheque within a stipulated period and if the drawer of that cheque fails to make the payment of the amount of money within the period stipulated from the receipt of the notice, the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 of the N.I. Act with imprisonment for a term which may extend to 2 years under the N.I. Act. The ingredients of Section 138 make it amply clear that every cheque that is dishonoured gives rise to the commission of an alleged offence for which there is a specified punishment. In the instant petition, four cheques were dishonoured, giving rise to four alleged offences. Since Section 219 deals with "offences" and not with "acts" or "transactions", the only conclusion that is possible is that dishonour of four cheques constitutes four distinct offences. The fact that two complaints have been filed in respect of four cheques that have been dishonoured cannot reduce the number of offences alleged to have been committed merely by clubbing two alleged offences in one complaint. The argument that all the four cheques were given as part of same transaction cannot bring the case of the Petitioner within the ambit of the provisions of Section 219 of the Code and to do so would be a clear violation of the provisions of that Section.

Considering the aforesaid decision of the Division Bench of this Court, which clearly applies to the facts and circumstances of the case on hand, it cannot be said that the learned trial Court has committed an error and/or illegality in dismissing the applications submitted by the respective Petitioners for joint trial of the aforesaid Criminal Cases, which came to be further confirmed by the learned revisional Court, which calls for the interference of this Court in exercise of powers under Article 227 of the Constitution of India.

In view of the above and for the reasons stated hereinabove all the petitions fail, which deserves to be dismissed and is accordingly dismissed.