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2018 DIGILAW 927 (JK)

Raj Singh v. Indian Oil Corporation Ltd.

2018-11-30

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant petition filed under Section 561-A of the Code of Criminal Procedure, the petitioner inter alia seeks quashing of the order dated 31.05.2017 passed in revision by the learned 1st Additional Sessions Judge, Jammu, to the extent it declines the prayer for trial of the complaints (eight in number) titled Indian Oil Corporation vs. M/s Katra Vaishno Devi Automobiles and another under Section 138 of the Negotiable Instruments Act, pending before the Court of Special Mobile Magistrate, Passenger Tax, Jammu, as one case, and the order of the trial Magistrate dated 21.09.2016 by virtue of which the aforesaid revision had arisen. 2. In the petition, it has been stated that the petitioner has been arrayed as one of the respondents with alleged liability against which cheques were issued for supply of petroleum products over a short period of few days to a partnership firm M/s Katra Vaishnodevi Automobiles; that eight complaints have been filed against the petitioner which are pending before the Special Mobile Magistrate, Passenger Tax, Jammu; that a single notice was issued to the firm for payment of the cheque amount in all the complaints; that it is a single offence and can be tried in a single trial in terms of Sections 234 and 235 of the Code of Criminal Procedure; that the petitioner filed an application drawing the attention of the trial court to the important aspect of the matter with the prayer that the complaints being tried separately be tried as a single case in a single trial; that the trial court vide order dated 21.09.2016 rejected the aforesaid application on the ground that the provisions of Section 234 of Cr.P.C. are not mandatory; the complaints had been pending for a long time and the petitioner had participated in the trial without raising any issue of joint trial. It is further stated that the revision petition filed by the petitioner before the Court of 1st Additional Sessions Judge, Jammu, that too, was rejected vide order dated 31.05.2017. It is further stated that the revision petition filed by the petitioner before the Court of 1st Additional Sessions Judge, Jammu, that too, was rejected vide order dated 31.05.2017. Now the petitioner has challenged the order of court below on the ground that (i) the trial court was not right in holding that the provisions of Section 234 Cr.P.C are not mandatory in nature, (ii) that the revisional court has also gone wrong in appreciation of the nature of controversy before it, (iii) that the trial court as well as the revisional court has not properly appreciated the provisions of Sections 234 and 235 Cr.P.C. and (iv) that the courts below have proceeded on an irrelevant consideration. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner has reiterated all the grounds taken in the memo of petition, whereas the counsel for the respondent has supported his case by relying upon various judgments. 5. I have carefully gone through the whole aspect of the matter. From perusal of the record, it reveals that the respondent has filed eight separate complaints with regard to dishonor of eight cheques, which were issued by the petitioner in order to discharge the liability of the respondent-Corporation from where the supply of petroleum products was received against payment by way of cheques. 6. These complaints were filed as per detail given below: S. No. Complaint No. D.O.I Cheque No. Amount Date of notice Date of cheque 1 45/552 29.06.2005 290643 315,000.00 16.05.2005 05.04.2005 2 47/864 29.06.2005 290644 315,000.00 16.05.2005 20.04.2005 3 48/242 29.06.2005 290646 464,000.00 16.05.2005 23.04.2005 4 49/246 29.06.2005 290639 315,000.00 16.05.2005 21.04.2005 5 50/244 29.06.2005 290640 413,000.00 16.05.2005 21.04.2005 6 56/523 29.06.2005 290638 364,000.00 16.05.2005 05.04.2005 7 57/524 29.06.2005 290645 315,000.00 16.05.2005 20.04.2005 8 554/com 29.06.2005 290642 463,000.00 16.05.2005 22.04.2005 7. The trial court took cognizance of each complaint separately and issued the process. These complaints were filed on 29.06.2005 and the court took cognizance on 09.07.2005. Record further reveals that these cheques were deposited in the bank but the same were dishonored vide memo of cheques dated 26.04.2005. A legal notice dated 16.05.2005 was issued within stipulated time. Thereafter the accused/petitioner did not pay the money; accordingly the complaint was filed within the stipulated time. Record further reveals that these cheques were deposited in the bank but the same were dishonored vide memo of cheques dated 26.04.2005. A legal notice dated 16.05.2005 was issued within stipulated time. Thereafter the accused/petitioner did not pay the money; accordingly the complaint was filed within the stipulated time. From perusal of the record, it further reveals that during the course of trial, the petitioner filed various applications in order to protract the trial, but all were dismissed by way of various orders. Record further reveals that the statement of accused under Section 242 Cr.P.C. was recorded on 28.11.2008, who denied the accusation and the complainant/respondent was directed to produce the evidence. After closure of the evidence of the complainant, statement of petitioner under Section 342 CrPC has also been recorded on 03.12.2015 in all the complaints. 8. After recording the statement, the petitioner filed an application requesting the court to club all the eight complaints together and tried it as single case. The court below after inviting the objections dismissed the said application. The concluding para of the order of court below dated 21.09.2016 reads as under: “Heard the counsel for the parties and have perused the file. Coming first to the application for joint trial of all the eight complaints, the relevant law on the subject is that for every distinct offence of which any person is accused there shall be a separate charge and every said charge shall be tried separately except in the case mentioned under section 234, 235, 236 & 239. In the case in hand the complaints filed against the accused person (8 in number) all form a distinct offence and therefore, are required to be charged separately. No doubt u/s 234, an exception is provided that three offences of the same kind within the year may be charged together. This provision merely authorizes combination of 3 offences in one trial but nowhere bars a separate trial of the accused for each separate offence. The provisions of this section are not mandatory but permissive in the case in hand the trial of the aforesaid complaints has been pending since the year 2005 and the accused has participated in the trial in all the complaints all along without ever raising an issue of joint trial. The provisions of this section are not mandatory but permissive in the case in hand the trial of the aforesaid complaints has been pending since the year 2005 and the accused has participated in the trial in all the complaints all along without ever raising an issue of joint trial. At this stage when the complaints are at their fag end the order directing joint trial would not be justified and the application seems to be attempt on the part of the accused to merely delay the trial. As such, the same is required to be rejected. Coming to the second application the applicant had moved an application u/s 342-A Cr.P.C for permission to examine himself as a defence witness which permission was accorded vide order dated 18.03.2016 and pursuant to the same the accused tendered his evidence by way of affidavit on the same date. It is penitent to mention here that on 02.04.2016, the junior counsel for the complainant sought time for cross examination of the accused as a witness and the case was fixed for hearing on 03.05.2016 on which date the accused was not cross examined as accused wanted that his cross examination should be conducted in presence of his counsel. The case was listed on 10.05.2016 on which date the accused appeared along with his counsel and was cross examined by the counsel for the complainant. It is pertinent to mention here that at no point of time after the cross examination of the accused on that date did the counsel for the accused raise a plea that he wishes to re-examine the accused as a witness and the instant application was filed only on 15.07.2016 after the examination of another defence witness namely Raj Kumar. Moreover, the ground on which the counsel for the accused has sought permission for re-examination already stands explained by him in his affidavit filed as evidence before this court and no discrepancy to the effect entitling the accused to a right of re-examination is made out from his application. This application is also accordingly rejected for the aforesaid reasons. The counsel for accused No.2 has moved an application for production of certified copies of plaint and written statement in suit titled Raj Singh vs. Rakesh Wazir and ors. This application is also accordingly rejected for the aforesaid reasons. The counsel for accused No.2 has moved an application for production of certified copies of plaint and written statement in suit titled Raj Singh vs. Rakesh Wazir and ors. This application has been opposed by counsel for complainant on ground that vide order dated 20.05.2016 the accused no.2 was to file certified copies of these documents within 15 days. However, considering the fact that the ground for delay stands duly explained and that these documents may help the court in effectively deciding the complaint, they are taken on record. The accused has not provided any other witness. Hence, defence evidence is closed. Put up for trial arguments on 01.10.2016.” 9. The petitioner thereafter filed a revision petition against the said order before the learned 1st Additional Sessions Judge, Jammu, who also dismissed the same vide order dated 31.05.2017. The concluding para of the order of learned 1st Additional Sessions Judge, Jammu, reads as under: “7. The Hon'ble Madras High Court in a case titled, 'Mohammed Kasim v. K. Rayappan reported as 2015 (10) RCR (Criminal) 449 has held that as observed earlier, in the case on hand, demands are separate and cases have been taken on file, in respect of the dishonor of cheques issued. Unlike the reported case, it is not a single complaint. Had there been a single complaint, in respect of three cheques issued and dishonoured, there could be a case for joinder of the charges. For every distinct offence of which a person is accused of, there could be a separate charge and every such charge shall be tried separately and the only exception to the above normal rule, as observed in the reported case was that there was a single complaint. The contention of the learned counsel for the petitioner that there would be a likelihood of imposing different punishments, in each Summary Trial case and thus the petitioner would be greatly prejudiced cannot be countenanced. 8. Learned Magistrate has observed, as is borne out from the record, that these complaints had been pending since the year 2005 and the petitioner has participated in the trial for all the complaints all along and is asking for a joint trial at this fag end of the trial, would not be justified as the same is an attempt on his part merely to delay the trial. 9. 9. It is not out of place to mention that it has been rightly observed by the trial court that the petitioner facing trial for the last more than 12 years when he was charge-sheeted in all the cases separately and the complainant's evidence was led in all the cases, separately what prompted him to ask for joint trial at the fag end of the trial of the cases. It seems that the petitioner, who is an accused in all the cases, wants to prolong the trial of these cases even further. The petitioner, who was alleged to have withheld the amount of the respondent corporation, which is public money, in my considered opinion, should not be allowed to further scuttle the matter in the trials only and his plea for joint trial of all the complaints by consolidating them into one is not only factually uncalled for, but also legally untenable since trial has already been almost over, after facing trials in eight separate complaints for more than 12 years. The trial of the petitioner in all eight separate complaints is almost over and in my considered opinion, all the offences with separate cause of action and with separate notices of demand cannot be clubbed together at this stage of the cases as the same shall not serve any purpose for trial. 10. The next contention with regard to his re-examination has also been dealt with by the trial court and it has been recorded that he moved an application under section 342-A Cr.P.C for permission to re-examine him as a defence witness-which was accorded to vide interim order dated 18.03.2016 and pursuant to same, he tendered his evidence by way of an affidavit on the same date; that on 02.04.2016, junior counsel of the complaint sought time for his cross-examination and the case was posted for 03.05.2016. However, on that date, the petitioner did not subject himself to cross-examination as he wanted his cross-examination to be conducted in presence of his counsel and the case was posted for 10.05.2016, when he was cross-examined in presence of his counsel and that at no point of time after the cross-examination of the petitioner, did his counsel raised a plea that he wishes him to re-examine and that the application for re-examination was moved on 15.07.2016 and even after examination of another defence witness namely Raj Kumar. 11. 11. As is born out from the record, the petitioner was examined and cross-examined at length over a longer time period, however, it will be in the interest of justice, to provide him an opportunity to be re-examined which is a statutory right for the simple reason that he has chosen not to be re-examined by his counsel. In my considered opinion, trial court ought to have provided an opportunity for his re-examination. 12. For the foregoing reasons and discussions made above the revision is partially rejected to the extent of consolidation of the complaints. So far as the re-examination of the petitioner in the complaints is concerned, revision is allowed. However, it is directed that the petitioner shall re-examine him on a single date in all the cases without asking for any further adjournment before the court below. Parties are directed to appear before the court below on 10.06.2017 for further orders. A copy of this order shall be sent down forthwith for information and compliance. 13. Disposed of. Consign to Records.” 10. I have given my thoughtful consideration to whole aspects of matter. The only grievance of counsel for petitioner is that all the complainants (eight complaints), be tried together in terms of section 234 of CR.P.C. Section 234 Cr.P.C. reads as under:- “234. Three offences of same kind within a 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 Ranbir Penal Code or of any special or local law: Provided that, for the purposes of this Section, an offence punishable under Section 379 of the Ranbir Penal Code 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 Ranbir Penal 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.” 11. Sections 234, 235 and 236 of the Code of Criminal Procedure, deal with the joinder of charges and the trial of different offences against the same accused at one and the same trial, while Section 233 of the Code of Criminal Procedure, states the general rule that for every distinct offence of which any person is accused there shall be a separate charge and each charge shall be tried separately. Sections 234, 235 and 236 are exceptions from Section 233 of the Code and enable a plurality of offences to be dealt with in the same trial against the same accused. According to Section 234 of the Code not more than three offences of the same kind committed within the space of 12 months can be tried together against a person. The limitation contained in Section 235, Sub-section (1) of the Code of Criminal Procedure, points out that more offences than one committed by the same person can only be tried together if such offences are in one series of acts so connected together as to form the same transaction. The one and the only one limitation in Section 235, Sub-section (1) of the Code of Criminal Procedure, is that accusation should be of more offences than one committed by the same person in one series of acts so connected together as to form the same transaction. Sub-section (1) of Section 235 of the Code of Criminal Procedure, deals with three matters; accusation, charge and trial. It says nothing about verdict. Sub-section (1) of Section 235 of the Code of Criminal Procedure, deals with three matters; accusation, charge and trial. It says nothing about verdict. The condition is expressed in the words "in one series of acts so connected together as to form the same transaction" and "more offences than one are committed by the same person", then he may be (a) charged with, (b) tried at the one and the same trial, and (c) for every such offences. It is on the basis ' of what appears on the face of the accusation that the Court may proceed to charge and try. The accusation is necessarily anterior to the exercise of the discretion to the charge and trial under Section 235, Sub-section (1) of the Code of Criminal Procedure. These are stages subsequent to the accusation. 12. Under this Section an accused can be charged and tried at one trial for the offences of same kind not exceeding three. This Section is applicable only where the same person is accused of having committed more offences than one of the same kind within the space of twelve months. He may be charged with or tried at one trial for such offences not exceeding three. It is also immaterial, if the offences had been committed against the same person or not. However, what is significant is that the offences of the same kind should have been committed by the same accused persons and not by different accused persons. Section 234 can have no application to the cases where some of the accused persons in the alleged two offences are common and or some of the alleged offences are common. Further, from bare perusal of Section 234 Cr.P.C., it is evident that provisions of this Section are directory and not mandatory in nature. 13. It is significant to note that what section 234 of the Criminal Procedure Code contemplates is only the joinder of charges. The section itself appears under the head "joinder of charges". Only at the stage of framing of charges, the requirements of section 234 of the Criminal Procedure Code are to be considered. 14. In the present case, in above said complaints which are eight in numbers, the complainant's evidence is over and that questioning under Section 313 Cr.P.C. of accused/petitioner, is also completed and the petition filed for joint trial is only to protract the trial. 14. In the present case, in above said complaints which are eight in numbers, the complainant's evidence is over and that questioning under Section 313 Cr.P.C. of accused/petitioner, is also completed and the petition filed for joint trial is only to protract the trial. The stage of charge is already over, so provisions of section 234 has no application at this stage. 15. In view of above, this petition is dismissed.