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2011 DIGILAW 393 (RAJ)

Daulat Bio Fiber Pvt. Ltd. v. State of Rajasthan

2011-02-22

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - In this misc. petition filed under Section 482 Criminal Procedure Code, the petitioner has prayed that the order dated 12.1.2010 passed by Special Judicial Magistrate (NI Act Cases) Court, Bikaner and the order dated 13.7.2010 passed by the Revisional Court in revision petition No. 16 of 2010 may be.quashed and set aside and the prayer made by the petitioners to consolidate and try both the cases together, may be allowed. 2. According to the facts of the case, the petitioner is facing trial in two cases for offence under Section 138 of Negotiable Instruments Act before Special Judicial Magistrate (NI Act Cases) Court, Bikaner. Both the cases are arising out from two cheques given by the petitioner to the respondent No. 2. First cheque was given on 11.2.2008 and second cheque was given on 5.3.2008 and both above cheques were dishonoured. After issuing notice to the petitioner, two complaints were filed for both the cheques separately by the complainant against the petitioner. The petitioner moved an application before the Trial Court praying therein that both the cheques have been issued during the course of same transaction and notices have been issued on the same day and complaints have been filed on the same day, therefore, it is appropriate to consolidate both the cases and try them together. 3. Learned Magistrate rejected the application filed under Section 219 Criminal Procedure Code by the petitioner vide order dated 12.1.2010, against which the petitioner preferred a revision petition, that too, was dismissed by the Revisional Court and in this petition filed under Section 482 Criminal Procedure Code, the petitioner has prayed for direction to the Trial Court to try both the complaints together in view of Section 219 of Criminal Procedure Code. 4. Learned counsel for the petitioner vehemently argued that orders impugned in this misc. petition are contrary to law because both the cases were registered within one year in connection with same transaction, therefore, both the orders are against the provisions of Section 219 Criminal Procedure Code. Hence, both the orders may be quashed and set aside and Trial Court may be directed to try both the complaints in view of Section 219 Criminal Procedure Code. 5. Hence, both the orders may be quashed and set aside and Trial Court may be directed to try both the complaints in view of Section 219 Criminal Procedure Code. 5. In support of his contention, learned counsel for the petitioner has invited my attention towards judgment of this Court in case of Radha Krishna Dang v. Indrajeet Bilandi, reported in 2008 (2) NIJ 379 (Raj) = 2008 (2) CrLR (Raj.) 942 and prayed that in view of aforesaid judgment, the direction as prayed for by the petitioner in the application filed under Section 219 before the Magistrate, may be granted. 6. Per contra, learned counsel appearing for the respondent submits that power under Section 219 Criminal Procedure Code is discretionary and petitioner cannot claim as a matter of right and here, in this case, both the cheques were issued by the petitioner to the complainant but both the cheques were issued on different dates and for different amount, therefore, Section 219 Criminal Procedure Code will not come to play for the purpose of granting relief as prayed by the petitioner. It is further submitted that as per judgment of this Court in case of Vijay Dev & Ors. v. Kailash Chand & Anr., reported in 2008 (2) NIJ 463 (Raj) = 2008 (2) CrLR (Raj.) 1206 and judgment of Bombay High Court in case of Ramjan Mohammad Usuf Kokani v. Atul Vijay Madan & Anr., reported in 2008 (2) NIJ 674 (Bom)[NOC] and judgment of Division Bench of Gujarat High Court in case of Kershi Pirozsha Bhagvagar v. State of Gujarat & Anr., reported in 2008 (1) NIJ 86 (Guj)(DB) and judgment of Gujarat High Court in case of Jayeshbhai Jayantibhai Maniar v. State of Gujarat, reported in 2006 (1) NIJ 48 (Guj) the relief prayed for by the petitioner cannot be granted in view of the fact that cheques were issued on different dates and for different amount; and as per judgment of Gujarat High Court, Section 219 Criminal Procedure Code will not apply in case of offence under Section 138 of Negotiable Instruments Act. Therefore, it is prayed that this petition may be dismissed. 7. After hearing learned counsel for the parties, I have perused Section 219 Criminal Procedure Code which reads as under : "219. Therefore, it is prayed that this petition may be dismissed. 7. After hearing learned counsel for the parties, I have perused Section 219 Criminal Procedure Code which reads 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, 1860 or of any special or local law : Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code, 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." 8. It is abundantly clear that legislature has specifically inserted Section 219 Criminal Procedure Code with a view that in the event of filing different complaints for same transaction, it will be appropriate for the Magistrate to try the cases together, therefore, in the event of registration of three cases of same kind within an year, it is the duty of the Magistrate to pass an order for consolidating three cases for the purpose of trial as per Section 219 Criminal Procedure Code. 9. After perusing language of Section 219 Criminal Procedure Code, I am of the opinion that although this section is discretionary but the same time a duty has been cast upon the Court that for reducing the arrears of cases and to save time, the Magistrate should apply its mind for the purpose of consolidating cases for trial if same kind of cases, arising out from the some incident, is filed against, the accused. Therefore, although Section 219 Criminal Procedure Code is discretionary but at the same time, it is the duty of the Trial Court to apply its mind, if such circumstances arise before him. 10. In this case admittedly, two cases were registered against the petitioner upon complaint filed by complainant for dishonouring two cheques issued by the petitioner, which are said to be issued by the petitioner in favour of the complainant, that too, arising out from the same transaction. Meaning thereby, it was the duty of the Trial Court to apply its mind in right perspective towards the facts of the case for the purpose of trial because both the cases are of same kind and arising out from same transaction. 11. The Coordinate Bench of this Court in case of Radha Krishna Dang (supra) has considered Section 219 Criminal Procedure Code, and held that if three cases of same kind are registered in one year, then, it is duty of the Magistrate to act in accordance with law. In my opinion, the facts of this case loudly speak that two cheques were issued by the complainant on 11.2.2008 and 5.3.2008 respectively and both these cheques were dishonoured and later on two complaints were filed by the respondent complainant on the same day and only difference is that amount of both the cheques was different but both the cheques were issued for the same transaction in between the parties. Therefore, the judgment of Gujarat High Court, cited by learned counsel for the respondent is not applicable upon the facts of the present case. Likewise, the judgment of Coordinate Bench of this Court in case of Vijay Dev (supra) is also based upon different facts because in that cases the Coordinate Bench has considered Section 220 of Criminal Procedure Code also and in para-7 of the judgment held that the Trial Court is directed to fix as far as possible a common date in all the cases during trial for the convenience of the parties and this will also save the precious time of the Court as well as the litigants. Meaning thereby, it was in the heart of the Coordinate Bench that the time of the Court is precious time but as per facts of the said case, it was not found necessary to pass an order for consolidating cases but view expressed by the Court is very much relevant for deciding present controversy. 12. In this view of the matter, I hold that although Section 219 Criminal Procedure Code is discretionary provision for passing an order to consolidate three cases if registered in one year but it is the duty of the Magistrate to see whether the cases are of similar nature and if it is so, then, to save time of the Court, the appropriate orders should be passed by the Magistrate. 13. In the present case, admittedly, only distinct feature which is brought to my notice is that the amount of cheques and date of cheques were different but it is admitted that both these complaints were filed within one year arising out from the same transaction and complaints were filed by the same person against the same accused. 14. In this view of the matter, this misc. petition filed under Section 482 Criminal Procedure Code is hereby allowed. The order dated 13.7.2010 passed by Additional Sessions Judge, Bikaner in Criminal Revision Petition No. 16 of 2010 and order dated 12.1.2010 passed by Special Judicial Magistrate (NI Act Cases), Court, Bikaner rejecting the application filed under Section 219 Criminal Procedure Code are hereby quashed and set aside and the concerned Magistrate is directed to consolidate both the cases and proceed for trial in both the cases together.Petition allowed. *******