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2010 DIGILAW 710 (HP)

LALIT KAUSHAL v. STATE OF H. P.

2010-04-08

SURINDER SINGH

body2010
JUDGMENT Surinder Singh, J.-Petitioners have preferred this petition under Section 482 of the Code of Criminal Procedure, against the order dated 23.6.2008, passed by the learned trial Magistrate in Complaint No.146/2 of 2005, titled State v. M.K. Sisodia, whereby the Magistrate ordered to return the challan filed under Section 420, 465, 467, 468, 471 and 120-B of the Indian Penal Code to file separate challans with respect to different amounts alleged to have been paid by the complainant vide different receipts. 2. The brief facts are that there has been a Shiwalik Cooperative Housing Society Limited at Baddi, in short ‘the Society’. It was incorporated for the allotment of plots at Baddi in Himachal Pradesh. It was having its head office was at Shiwalik Nagar. Petitioner Madhulesh Kumar Sisodia was the Secretary. This Society opted for two housing projects. 3. Project No.1 was at Shiwalik Nagar, Baddi and Project No.2 was at Shiwalik Puram, Baddi. Project No.1 was initiated during the year 1987. Petitioner Madhulesh Kumar Sisodia allotted plots to all of its members and some houses were constructed after availing a loan of Rs.1,80 crore from the House Fed, Himachal Pradesh, Shimla and houses were allotted to its members, but the loan was not repaid, as such the Financers filed a suit for its recovery. 4. Project No.2 was initiated in the year 1990-91 with the membership of 600 members. In this project, a sum of Rs.1.45 crore was collected from its members as price of the plots. 5. In FIR No.92 of 2003, Raj Kumar is alleged to have paid different amount to the petitioners for a plot of 200 square yards and a lease agreement was also executed by the petitioner, but no possession of the plot was handed over and no such plot was there on the spot. Even the land was not in the name of the Society. It also came to the notice that the receipts of the amount received by the petitioners were signed by them and investigation also revealed that the map of the plots were only of 180 square yards as already assured against 200 square yards. Even the land was not in the name of the Society. It also came to the notice that the receipts of the amount received by the petitioners were signed by them and investigation also revealed that the map of the plots were only of 180 square yards as already assured against 200 square yards. The complainant Raj Kumar was allotted Plot No.249, but its possession was not handed over to him, rather the petitioners have collected the amount from its members and had purchased the plots either in the name of the petitioners or their relatives, thus cheated the complainant. 6. After completing the investigation of this case, challan was presented before the learned trial Court. Vide order dated 23.6.2008, while relying upon Kamal Bhatia vs. State of Himachal Pradesh [1999 (2) Shimla Law Cases, 141] and Jodhpur Woollen Mills Ltd. and others vs. State of Rajasthan and another [1995 Criminal Law Journal, 769], ordered to return both the challans to the SHO, Police Station Barotiwala, with a direction to file separate challan with regard to three consecutive embezzlements. According to the learned trial court could not have passed the impugned order as after the investigation, the Investigating Agency had filed the separate challans under Section 173 of the Code of Criminal Procedure and while framing the charges, it could have rectified the errors, but there is no justification for filing the separate challans, with regard to three consecutive embezzlements, as ordered. 7. I have heard the learned counsel for the parties and have carefully gone through the record. 8. In fact, Sections 218 to 224 deal with the joinder of charges i.e. the charges that may be joint in /one trial, but it is a settled law that in a criminal cases like civil suits cannot be amalgamated and tried together except within the limits as to joinder of charges are allowed under the aforesaid sections. Sections 218 and 224 contained the rule of general application, whereas, Sections 219 to 222 refers to the cases of a single accused and Section 223 deals with the joinder of charges when more persons than one are accused at the same trial. 9. Section 218 reads as under: “218. Sections 218 and 224 contained the rule of general application, whereas, Sections 219 to 222 refers to the cases of a single accused and Section 223 deals with the joinder of charges when more persons than one are accused at the same trial. 9. Section 218 reads as under: “218. Separate charges for distinct offences- (1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219,220, 221 and 223. 10. The above section embodied the general law and lays down: (a) that there must be separate charge for distinct offence; and (b) there shall be separate trial for each of such charges except for the cases falling in Sections 219,221 and 223.” 11. Sections 219 and 220 can be usefully quoted 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 laws: 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. 220. 220. Trial for more than one offence.- (1) 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. (2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts. (5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860).” 12. Section 221 takes care to overcome the situation where it is doubtful to the court that what offence has been committed by the accused, whereas, Section 223 provides as to what person can be charged jointly and proviso added to it empowers the Magistrate or the Court of Sessions that on the application moved by the accused person, it may direct their joint trial even if they do not fall in this section and further if the court is satisfied that the such person not affected prejudicially thereby. The object of this provision is to ensure a fair trial and to see that the accused is not bewildered by having to defend several unconnected charges or distinct offences lumped together in one charge or in separate charges and also to prevent the court being unduly influenced by the different evidence against the accused on different charge. 13. The object of this provision is to ensure a fair trial and to see that the accused is not bewildered by having to defend several unconnected charges or distinct offences lumped together in one charge or in separate charges and also to prevent the court being unduly influenced by the different evidence against the accused on different charge. 13. In the instant case, there is allegation of conspiracy inter se the petitioners to defraud its members. Prima-facie, there is only one object of conspiracy and the act done is at various times. This single conspiracy cannot be split over into two or three conspiracies. The police have presented the separate challan in the separate FIRs. The conspiracy with respect to the issuance of the different receipts remains the same. The different receipts may be spread over a period of months, but in each case/FIR, separate charge is required for every distinct offence and not necessarily for each offence. 14. It has been held in M.K.S. Abbas vs. State of Madras [AIR 1957, Supreme Court 340] that where the charge, as framed, discloses one single conspiracy, although spread over several years, there is only one object of the conspiracy and that is to cheat members of the public, the fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy does not change the conspiracy and does not split up a single conspiracy into several conspiracies and it was also noted on facts that as the instances of cheating were in pursuance of one conspiracy and were parts of the same transaction, there was no misjoinder of charges. 15. The police authorities have filed the challan for the cognizable offences under the scheme of the Code of Criminal Procedure. They have come out with a definite story with respect to hatching of the conspiracy, pursuant to which the members were alleged to have been cheated. Therefore, in these circumstances, there is no justification for filing separate challan, more specifically, when the petitioners have not alleged any prejudice. Kamal Bhatia’s judgment, supra relied upon by the learned trial Court is with respect to the six cases of misappropriation, which were ordered to be consolidated into one and was tried and the accused was convicted. Therefore, in these circumstances, there is no justification for filing separate challan, more specifically, when the petitioners have not alleged any prejudice. Kamal Bhatia’s judgment, supra relied upon by the learned trial Court is with respect to the six cases of misappropriation, which were ordered to be consolidated into one and was tried and the accused was convicted. He challenged the consolidation of the cases, which caused prejudice to him and his contention was found to be correct in view of the proviso of Section 218(1) of the Code. In that context, it was held that no unlimited charges can be tried together only on the request made by the accused. 16. Insofar as the judgment rendered in Jodhpur Woollen Mills Limited, supra is concerned, the same is not applicable in this case. Therefore, the impugned order dated 23.6.2008, passed in Case No.146/2 of 2005 titled State v. M.K. Sisodia is hereby set-aside. Thus, the respondent is hereby directed that if the original challan in this case has been returned to the SHO, Police Station 17. Barotiwala, the same be filed in the court of Judicial Magistrate Ist Class Nallagarh, who shall try and hear it in accordance with law. The parties are hereby directed to be present before the learned trial Court on 30.4.2010. The petition stands disposed of. In view of the disposal of the main petition, all pending miscellaneous applications are accordingly disposed of.