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1997 DIGILAW 821 (MAD)

K. Govindraj v. Aswhin Barai

1997-08-09

S.M.SIDICKK

body1997
Judgment :- This is a petition filed by the petitioner /accused under Ss. 482 and 483, Cr.P.C. to set aside the order dated 28-3-1995 made in Crl. Revision petition No. 15/94 on the file of Principal Sessions Judge at Pondicherry with reference to CC No. 230/92 on the file of Judicial Magistrate, Pondicherry. 2. The material allegations in the petition are as follows : - The respondent had preferred a complaint against the petitioner for an offence under S. 138 of the Negotiable Instruments Act, before the judicial Magistrate, Pondicherry in CC No. 230 of 1992 and the learned Magistrate had framed charges against the petitioners. The petitioner aggrieved by that had preferred a Criminal Revision Petition No. 15/94 before the Principal Sessions Judge, Pondichery under S.397 (1) Cr.P.C. 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. 230/92 on the file of Judicial I Class Magistrate, Pondicherry. The Judicial I Class Magistrate, Pondicherry has violated S. 219, Cr.P.C in as much as the learned Magistrate has taken cognizance of offences pertaining to the dishonour of six cheques in one single complaint filed in the case referred supra. The same is not only contrary to law but also it is illegal. The learned Principal Session Judge, Pondicherry while disposing the criminal revision petition 15/94 dated 28-3-1995 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 S. 219, Cr.P.C. 3. On hearing the 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 and the Ss.482 and 483, Cr.P.C. 4. On hearing the 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 and the Ss.482 and 483, Cr.P.C. 4. Point : - The learned counsel for the petitioner seriously contended that the respondent has filed a complaint before the trail Magistrate on the basis of six dishonoured cheques, and that cannot be done because the dishonour of each cheque will give a separately cause of action for filing a complaint under S. 138 of Negotiable Instruments Act and in all the three dishonoured cheques can be brought into penal action under S. 138 of Negotiable Instruments Act, and this is made clear in the provision of S. 219Cr.P.C, and in those circumstances, the order passed by the Principal sessions Judge, Pondicherry in Crl, Revision Petition No. 15/94 dated 28-3-1995 must be set aside. 5. The above contention of the learned counsel for the petitioner are untenable for the following reasons. The respondent filed a private complaint against the petitioner for an offence under S. 138 of Negotiable Instrument Act on the basis of six dishonoured cheques. Section 219(1) of Cr.P.C. states that when a person is accused of more offences then one of the same kind committed within a space of twelve months from the first to the last of such offences, whether in respect of same person or not, he may be charged with, and tried at one trail for any number of them not 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 he 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 the six cheques together on 24-1-1992 and the complainant accordingly presented all the cheques together and they have been returned on the same date i.e. on 28-1-1992 with an endorsement "Payment Stopped". However, in the complaint the respondent/complainant would state that the accused required him to present all the six cheques together on 24-1-1992 and the complainant accordingly presented all the cheques together and they have been returned on the same date i.e. on 28-1-1992 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 S. 219 (1), Cr.P.C. and 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 24-1-1992 and all the cheques together simultaneously presented and all the cheques were returned on 28-1-1992 simultaneously with an endorsement "payment stopped" and therefore the offence alleged to have been committed was in respect of single transaction and not in respect of different transactions. 6. Even otherwise S. 220 (1) of Cr.P.C. states that o if 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 charged with, and tried at one trail 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 those acts of giving these cheques were merged together to form the same transaction viz., the presentation of all these cheques together on one particular date as requested by the petitioner/accused herein. In other words even though different cheques were given on different dates, the presentation of all these cheque 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 chouse by giving one lawyer's notice and not several demands made by the respondent/complainant for the payment of the dishonoured cheques. Further the demand was also made by the respondent complainant on the dishonouring of the chouse 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 trail for several such offence 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. 7. Even ignoring this aspect, Section 397(3) of Cr.P.C. 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 discharged the accused in the case C.C. No. 230/92 and the same was dismissed by the Principal Sessions Judge, Pondicherry on 28-3-1995 in Crl.R.P.No.15/94. 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. 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 under 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 under S. 482 of Cr.P.C. This view gained support from the decision of the Supreme Court in Deepthi v. Akhil Rai 1995 (3) CRIMES 818, 1995 (4) CCR 49, 1995 (7) JT 175 , 1995 (5) Scale 328 , 1995 (5) SCC 751 , 1995 SCC(Cr) 1020, 1995 (3) SCJ 659 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 under 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 under S. 397(3) of Cr.P.C. for maintaining this application under S. 482 of Cr.P.C. to invoke the inherent power of the High Court to set aside the order dated 28-3-1995 in Crl. Revision Case No. 15/94 and consequently to revise the charges framed by the Judicial Magistrate, Pondicherry and to discharge the accused from the case in C.C.No.230/92. 8. Revision Case No. 15/94 and consequently to revise the charges framed by the Judicial Magistrate, Pondicherry and to discharge the accused from the case in C.C.No.230/92. 8. Even brushing aside, this aspect has covered under S. 397 (3), Cr.P.C, the petitioner/accused herein has come forward with an application under S. 482 of Cr.P.C. before the High Court at an earlier point of time in Crl.O.P.No.16274/92 and the same has been suppressed by the petitioner herein and so the petitioner herein is not entitled for any relief under S. 482 of Cr.P.C. A perusal of the copy of the order passed in Crl.O.P. No. 16274/92 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. 230/92 on the file of Judicial Magistrate, Ponidcherry and quashed the same, and Justice Pratap Singh, J. on considering the allegations made in the complaint and on considering the contentions placed before him, came to the conclusion that the complaint cannot be quashed at the threshold and consequently dismissed the Crl.O.P. filed under S. 428, Cr.P.C. so this present petition under S. 482, Cr.P.C. is the second attempt made by the petitioner/accused herein, and at no. stretch of imagination he can seek the remedy from his Court under S. 482 Cr.P.C. once again. 9. Considering the above facts an circumstances of the case, I am to hold that eh petitioner/accused is not entitled to the relief prayed for in this petition under S. 482 and 483, Cr.P.C, and so this petition has to be dismissed, and consequently I answer this point as against the petitioner. 10. In the result the petition is dismissed. Consequently the stay petition in Crl.M.P. No. 2100/95 is dismissed and the interim stay is vacated.