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2011 DIGILAW 127 (MP)

Mukesh Birthare v. Deepak Sharma

2011-01-31

S.R.WAGHMARE

body2011
ORDER Heard. 1. By this application under section 482 of CrPC accused Mukesh Birthare preferred the present petition, being aggrieved by the order dated 21.7.2010 passed by the IInd Additional District Judge, Mhow in Criminal Revision No. 182/10 upholding the order of the trial Court, rejecting the application under section 219 of the CrPC filed by the present petitioner. 2. Brief facts of the case are that the respondent complainant Deepak Sharma tiled complaint under section 138 of the Negotiable Instruments Act alleging that 6 cheques issued by the present petitioner on various dates in the year 2006 were dishonoured and the accused failed to repay the loan, despite statutory notice. Counsel stated that the complainant filed a single complaint before the trial Court and hence he filed application under section 219 of the CrPC which states that the Court can only try three offences of the same kind within year may be charged together and hence, there were a bar under the provisions of law for the consolidation, since the cheques were issued on different cheques for different transactions and for each dishonoured cheque a separate trial would have to be conducted. The trial Court, however, rejected the application and the rejection was upheld by the Revisional Court, and hence, this application for quashment of the impugned order under section 482 of the CrPC. 3. Counsel for the applicant has vehemently prayed for stay of the proceedings in the Court below in this regard. He argued that the Courts below had erred in dismissing the application filed by the applicant merely on the ground that the offence is committed in sequence or series of events and two complaints would not be necessary. Counsel urged that such a finding by the learned Courts below is against the provisions of law and the Courts below had committed a grave error in holding that these offences of the similar crime together and the order was on facts of the case is illegal per se and without jurisdiction. Moreover, Counsel also pointed out that the word 'cheque' in singular is used in section 138 of the Negotiable Instruments Act and he has referred to judgment of this Court in the matter of Criminal Revision No. 1114/2009, whereby the Court had upheld the order of remand directing the trial Court to try the case separately for separate cheques under the same set of circumstances. Counsel prayed that the criminal complaint by the respondent bearing No. 168/07 pending before the learned Judicial Magistrate, Class I, Mhow, Distt. Indore be quashed. 4. On considering the above submissions and perusing the impugned order, I find that there is no infirmity in the same. Indubitably section 218 of the CrPC mandates that for every distinct offence there shall be a separate charge and the accused shall be tried separately. Section 219 of the CrPC directs that only three offences of a kind within year may be charged together and]t abo specifies that the offences must he of the same kind and it he spaced within 12 months and when it is against the same accused and the offences are punishable with the same amount of punishment. However, subsection (1) of section 220 of OPC also makes it clear 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. Sub-section (2) provides that 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 (1) of section 219, is accused of committing, for the purpose or 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. 5. Then, I also find that learned Judge of the Revisional Court has relied on Anita v. Anil Kumar Mehta and others, 1996 Part I Crime 412 and Manjula v. Colgate Palmolive India Ltd. through authorised signature T. Harikumar, 2007 Part I CLDC 198, to state that section 219 of the CrPC will not be a bar to prosecution on one complaint even if it involved more than three disputed cheques. 6. I also place my reliance on a decision of the Division Bench of the Madras High Court in the matter of Manjula v. Colgate Palmolive (India) Ltd., Rep. 6. I also place my reliance on a decision of the Division Bench of the Madras High Court in the matter of Manjula v. Colgate Palmolive (India) Ltd., Rep. by its authorised signatory T. Harikumar, which is a Division Judgment of the High Court reported in 2007 (1) DCR 192 and Court has dealt in detail, the provisions of sections 218, 219, 220 and section 138 of the Negotiable Instruments Act and has drawn conclusion thus :- "15. In these circumstances, we hold that section 219 (1) CrPC permits joinder of all charges provided they are offenccs of the same kind. We are also of the view that the number of transactions and the cheques issued prior to the issuance of the statutory notice under section 138 (b) of the Act could at best he considered as hundle of facts giving rise to a cause of action and that it is not a ground to quash the criminal proceedings against the drawer of the cheques. We futher hold that if the offence are of the same kind, the number of transactions between the parties which culminated into issuance of the statutory notice is no ground to urge that under section 219, CrPC, the prosecution laid against the petitioner is not maintainable". 16. In the case on hand, though the act of issuance of 16 cheques was on different dates, in view of the fact that a demand was made by issuing a common notice, the complaint cannot be said to be vitiated. To put it clear. though the giving of cheques by the accused to the complainant may be on different dates, all those acts of giving those cheques were merged together to form the same transaction, viz., the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands, we are of the view that the accused 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, therefore, it cannot be said that the complaint is vitiated. 7. 7. Having given my anxious consideration to the above said authorities I find that both the Courts below have not committed any illegality in rejecting the application of the present petitioner. Moreover, in impugned Para 14 of the order of the Revisional Court, the Court has found that the petitioner has also filed earlier two revisions and is just trying to delay the matter by using all sorts of delaying tactics. He could have made the objection in the year 2008 itself. However, the seriousness of the objection cannot be guaged by this fact and hence, no adverse effect would be caused to the petitioner if all the six dishonoured cheques is tried in a single trial and on considering the above, there is no infirmity in the order passed. 8. The application is without merit and is, therefore, dismissed as such.