K. Govindaraj vs Ashwin Barai

S.M. Sidickk, J.—This is a petition filed by the petitioner/accused under sections 482 and 483 of the Criminal Procedure Code, 1973, to

set aside the order dated March 28, 1995, made in Criminal Revision Petition No. 15 of 1994, on the file of the Principal Sessions Judge at

Pondicherry, with reference to C.C. No. 230 of 1992, on the file of the Judicial Magistrate, Pondicherry.

The material allegations in the petition are as follows :

The respondent had preferred a complaint against the petitioner for an offence u/s 138 of the Negotiable Instruments Act, 1881, before the Judicial

Magistrate, Pondicherry, in C.C. No. 230 of 1992, and the learned magistrate had framed charges against the petitioner. The petitioner aggrieved

by that had preferred a Criminal Revision Petition No. 15 of 1994, before the Principal Sessions Judge, Pondicherry, u/s 397(1) of the Criminal

Procedure Code, 1973, to revise the charges framed by the Judicial I Class Magistrate, Pondicherry, and also to discharge the accused from the

case in C.C. No. 230 of 1992, on the file of the Judicial I Class Magistrate, Pondicherry. The Judicial I Class Magistrate, Pondicherry, had

violated section 219 of the Criminal Procedure Code, 1973, inasmuch as the learned magistrate had taken cognizance of offences pertaining to the

dishonour of six cheques in one single complaint filed in the case referred to supra. The same is not only contrary to law but also it is illegal. The

learned Principal Sessions Judge, Pondicherry, will disposing Criminal Revision Petition No. 15 of 1994, dated March 28, 1995, in his order had

dismissed the revision petition filed by the petitioner and also held that the Judicial Magistrate I Class, Pondicherry, did not violate section 219 of

the Criminal Procedure Code, 1973.

On hearing learned counsel for both sides, the point that arises for determination in this petition is as to whether the petitioner is entitled to the

relief prayed for in this petition under sections 482 and 483 of the Criminal Procedure Code, 1973.

Point : Learned counsel for the petitioner seriously contended that the respondent has filed a complaint before the trial magistrate on the basis of

six dishonoured cheques, and that cannot be done because the dishonour of each cheque will give a separate cause of action for filing a complaint

u/s 138 of the Negotiable Instruments Act, 1881, and in all three dishonoured cheques can be brought into the penal action u/s 138 of the

Negotiable Instruments Act, 1881, and this is made clear in the provision of section 219 of the Criminal Procedure Code, 1973, and in these

circumstances, the order passed by the Principal Session Judge, Pondicherry, in Criminal Revision Petition No. 15 of 1994, dated March 28,

1995, must be set aside.

The above contention of learned counsel for the petitioner is untenable for the following reasons. The respondent filed a private complaint

against the petitioner for an offence u/s 138 of the Negotiable Instruments Act on the basis of six dishonoured cheques. Section 219(1) of the

Criminal Procedure Code states that when a person is accused of more than one offence 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 exceeding three. In the present case, a reading of the complaint by the respondent before the lower court filed along with the

typed set of papers in this petition, revealed that six dishonoured cheques were given to the respondent in the months of September, October and

November, 1991, on various dates, i.e., within a period of twelve months. However, in the complaint the respondent/complainant would state that

the accused required him to present all these six cheques together on January 24, 1992, and the complainant accordingly presented all the cheques

together and they have been returned on the same date, i.e., on January 28, 1992, with an endorsement ""payment stopped"". Therefore, each

cheque will not give a separate cause of action in view of the request made by the petitioner/accused herein to present all the cheques on a

particular date which was done by the respondent/complainant in this case and so section 219(1) of the Criminal Procedure Code is not attracted

to the facts of the present case for the simple reason that the petitioner/accused in this case advised or instructed the respondent/complainant to

present all the cheques together on a single day, i.e., on January 24, 1992, and all the cheques were together simultaneously presented and all the

cheques were returned on January 28, 1992, simultaneously with an endorsement ""payment stopped"", and therefore, the offence alleged to have

been committed was in respect of a single transaction and not in respect of different transactions.

Even otherwise section 220(1) of the Criminal Procedure Code states 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. In

the present case though the giving of six cheques by the petitioner/accused to the respondent/complainant may be on different dates but all these

acts of giving these cheques were merged together to form the same transaction viz., the presentation of all these cheques together on one

particular day as requested by the petitioner/accused herein. In other words even though different cheques were given on different dates, the

presentation of all these cheques formed the same transaction on the instruction of the petitioner/accused herein given to the

respondent/complainant. Further, the demand was also made by the respondent/complainant on the dishonouring of the cheques by giving one

lawyer''s notice and not several demands made by the respondent/complainant for the payment of the dishonoured cheques. In those

circumstances, I am 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 together so as to form the same transaction of dishonouring the cheques on a single day on the

presentation of the same as requested by the petitioner/accused herein.

Even ignoring this aspect, section 397(3) of the Criminal Procedure Code will come into play with reference to the facts and circumstances of

this case. It is not in dispute that the petitioner/accused preferred a revision petition before the Principal Sessions Judge, Pondicherry, to revise the

charges framed by the Judicial Magistrate, Pondicherry and discharge the accused in the case in C.C. No. 230 of 1992, and the same was

dismissed by the Principal Sessions Judge, Pondicherry on March 28, 1995, in Crl. Revision Petition No. 15 of 1994. Section 397(3) states that if

an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the

same person shall be entertained by the other of them. In other words, when the earlier revision petition u/s 397(1) was filed, there cannot be a

second revision petition by the same accused, and this provision of law cannot be circumvented by invoking the inherent jurisdiction of the High

Court u/s 482 of the Criminal Procedure Code. This view gains support from the decision of the Supreme Court in Deepti alias Arati Rai Vs. Akhil

Rai and Others, , wherein, at page 752, and at the end of para. 4, it was held as follows :

It (High Court) should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is

not maintainable and that the inherent power u/s 482 of the Code, cannot be utilised for exercising powers which are expressly barred by the

Code"".

Therefore, the petitioner/accused herein is specifically barred u/s 397(3) of the Criminal Procedure Code from maintaining this application u/s 482

of the Criminal Procedure Code to invoke the inherent power of the High Court to set aside the order dated March 28, 1995, in Criminal Revision

Case No. 15 of 1994, and consequently to revise the charges framed by the Judicial Magistrate, Pondicherry, and to discharge the accused from

the case in C.C. No. 230 of 1992.

Even brushing aside this aspect as covered u/s 397(3) of the Criminal Procedure Code, the petitioner/accused herein has come forward with an

application u/s 482 of the Criminal Procedure Code before the High Court at an earlier point of time in Crl. O.P. No. 16274 of 1992, and the

same has been suppressed by the petitioner herein and so the petitioner herein is not entitled for any relief u/s 482 of the Criminal Procedure Code.

A perusal of the copy of the order passed in Crl. O.P. No. 16274 of 1992, filed by the petitioner/accused herein before this court filed along with

the typed set of papers by the respondent-complainant would reveal that the petitioner-accused herein made an attempt earlier to call for the

records in C.C. No. 230 of 1992, on the file of Judicial Magistrate, Pondicherry, and quash the same, and Justice Pratap Singh on considering the

allegations made in the complaint and on considering the contentions raised before him, came to the conclusion that the complaint cannot be

quashed at the threshold and consequently dismissed the Crl. O.P. filed u/s 482 of the Criminal Procedure Code. So this present petition u/s 482

of the Criminal Procedure Code is the second attempt made by the petitioner/accused herein, and by no stretch of imagination can he seek the

remedy from this court u/s 482 of the Criminal Procedure Code, once again.

Considering the above facts and circumstances of the case, I am to hold that the petitioner-accused is not entitled to the relief prayed for in this

petition under sections 482 and 483 of the Criminal Procedure Code, and so this petition has to be dismissed, and consequently, I answer this

point against the petitioner.

In the result the petition is dismissed. Consequently, the stay petition in Crl. M.P. No. 2100 of 1995 is dismissed and the interim stay is

vacated.