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2017 DIGILAW 1438 (ORI)

Nrusingha Charan Khuntia v. State of Odisha

2017-12-11

B.K.NAYAK

body2017
ORDER 11.12.2017. Heard learned Counsel for the petitioner and the learned State Counsel. 2. Orders passed by the JMFC, Sambalpur in 1CC No.106 of 2016 rejecting the application of the petitioner for joint trial of 1CC No.24 of 2016 with 1CC No.102 of 2016 is the subject matter of challenge in this proceeding. 3. The petitioner is the accused in the aforesaid two complaint cases filed under Section 138, Negotiable Instruments Act. The complaint case bearing 1CC No.24 of 2016 relates to dishonour of one cheque issued by the petitioner to the complainant-Opposite Party and 1CC No.102 of 2016 relates to dishonour of two cheques of the petitioner issued in favour of the same complainant. The petitioner filed application before the Trial Magistrate for joint trial of both the complaint cases in view of the provision of Section 219, Cr.P.C. The Magistrate rejected the petition on the ground that both the cases cannot be clubbed together as the cause of actions for both are different. 4. The learned Counsel for the petitioner submits that the cheques in relation to both the complaint cases have been issued within a span of three months and the nature of the offence or charge being the same for both the cases, provision of Section 219, Cr.P.C. squarely applies, and therefore, there should be simultaneous trial of both the cases. 5. Learned Counsel for the Opposite Party on the other hand submits that Section 143 of the N.I. Act excludes the applicability of Cr.P.C. and for that matter Section 219 of the said code is not applicable to Section 138, N .I . Act. 6. Section 219 of the Cr.P.C. provides as under : “(219.Three offences of same kind within year may be charged together. (1) When a person is accused of more offences, then one of the same kind committed within the space of twelve months from the first to the last of such offense, 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. (1) When a person is accused of more offences, then one of the same kind committed within the space of twelve months from the first to the last of such offense, 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) Ofences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (4 of 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 (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.” 7. Sub-section (1) of Section 143 of the N.I. Act, which is relevant for our purpose, provides as under : “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offense under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials. Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.” 8. The aforesaid provision of Section 143, NI Act does not exclude the applicability of provisions of Cr.P.C. to trials of offence under Section 138 of the Act. It only provides for the summary procedure of trial of the offence with provision for different punishment in certain cases. Summary procedure is a procedure which is provided in the Cr.P.C. itself. From a combined reading of the provisions of Section 143, N.I. Act and Section 219 of the Cr.P.C, it is clear that Section 219, Cr.P.C. shall also be applicable to cases under Section 138, N.I. Act. 9. In the circumstances, I set aside the impugned order and direct the learned JMFC, Sambalpur to club both the complaint cases and take up joint trial. The CRLMC is accordingly disposed of. Issue urgent certified copy. CRLMC disposed of.