SH - Charashni Kumar Talwani v. M/s Malhotra Poultries, Naraingarh Road, Barwala

Criminal Misc.No.
M-27622 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc.No.M-27622 of 2012
Date of Decision: 22.10.2013
Sh.Charashni Kumar Talwani
....petitioner
versus
M/s Malhotra Poultries, Naraingarh Road, Barwala
....Respondent
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE FATEH DEEP SINGH
1.Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.Ashok Gupta, Advocate
for the petitioner
Mr.Aman Bahri, Advocate
for the respondent
****
Fateh Deep Singh J.
A petition, under Section 482 of the Code of Criminal
Procedure (for short "Cr.P.C."), has been preferred by petitioner
Charashni Kumar Talwani, seeking quashing of criminal complaint
filed by respondent M/s Malhotra Poultries, under Section 138 of the
Negotiable Instruments Act (for short 'the Act'), pending before the
learned Judicial Magistrate 1
st
Class, Panchkula.
The brief background as to what has led to this is that
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I attest to the accuracy and
integrity of this document
Chandigarh
Criminal Misc.No.M-27622 of 2012 2
during the se proceedings, the petitioner had earlier raised question
of territorial jurisdiction of the Court at Panchkula, which prayer was
declined by the learned trial Magistrate. Against this a revision was
preferred before the learned Sessions Court, which was accepted
and the matter was remitted back. It is in the light of this, vide order
dated 31.10.2011, the present petitioner was summoned in this
complaint as an accused by the learned Judicial Magistrate. Before
the learned trial Court, the petitioner submitted that the present
complaint was in respect of dishonour of ten cheques which
constitute separate offences and therefore, the accused cannot be
tried together. It is argued that under the provisions of Section 219
Cr.P.C., a person who is accused of offences of the same kind within
a period of 12 months can be charged and tried for offences not
exceeding three of them but an accused of ten distinct charges, each
cheque disclosing separate offence, cannot be charged in one
complaint. However, this plea of the accused/present petitioner was
rejected. The accused was served with the notice of accusation.
It is at this juncture, the petitioner has come up in this
petition praying for exercise of inherent powers of this Court for
quashing of the complaint. The learned single Bench of this Court,
finding contradictory views over the interpretation of Section 219 and
Section 220 Cr.P.C., whereby offences which formed part of the
same transaction could be tried together irrespective of their number
and the contrary view to it, has thought it fit and thus has referred the
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matter to be decided by a Larger Bench to comprehensively
adjudicate on this issue. It is in the light of this, the matter has come
up before us.
Heard learned counsel for the parties at length.
The Act has been legislated way back in the year 1881
with the purpose to regulate mercantile transactions. However, with
the passage of time and evolution of complexities, it was felt
necessary to bring about changes for better regulation of the
merchanting system. It was with this end in view, Sections 138 to
Section 142 were inserted by The Bank, Public Financial Institution
and Negotiable Instruments Laws (Amendment) Act, 1988, w.e.f.
01.04.1989. This is an apt illustration of balanced and pragmatic
approach adopted by the Legislature for the economic development
of the Country.
Hon'ble the Supreme Court of India in Kusum Ingots
Alloys Ltd Vs Pennar Peterson Ltd AIR 2000 SC 954, interpreting
the provisions of Section 138 of the Act, have laid down the essential
ingredients of this provision as follows:
(i) a person must have drawn a cheque on an account
maintained by him in the bank for payment of a
certain amount of money to another person from out
of that account for the discharge of any debt or other
liability;
(ii)that cheque has been presented to the bank within a
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period of six months from the date on which it is
drawn or within the period of its validity whichever is
earlier;
(iii)that cheque is returned by the bank unpaid, either
because of the amount of money standing to the
credit of the account is insufficient to honour the
cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with
the bank;
(iv)the payee or the holder in due course of the cheque
makes a demand for the payment of the said amount
of money by giving a notice in writing to the drawer
of the cheque, within 15 days of the receipt of
information by him from the bank regarding the
return of the cheque unpaid;
(v)the drawer of such cheque fails to make payment of
the said amount of money to the payee or the holder
in due course of the cheque within 15 days of the
receipt of the said notice.
This was further reiterated in the case of K.R.Indira
versus Dr.G.Adinarayana (2003) 8 SCC 300. It needs to be kept in
mind that the provisions of Section 138 of the Act, do not run counter
to the basic principles of criminal law that an accused must be
presumed to be innocent. However, the provisions of Section 139 of
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the Act, raises a presumption in the light of certain admitted facts in
favour of the holder of the cheque and that the accused is guilty.
The provisions of Section 243 Cr.P.C. and Section 4 of
the Indian Evidence Act also have their application during trial of
offences under the provisions of this Act. By virtue of Section 143 of
the Act, which has been subsequently inserted by the Negotiable
Instruments (Amendment and Misc.Provisions)Act, 2002, a complaint
preferred under Section 138 of the Act is to be tried summarily and
thus, the provisions of Section 262 and Section 265 Cr.P.C. govern
such a process. The procedure for summary trials has been well laid
down in Chapter XXI from Section 260 to Section 265 Cr.P.C. It
needs to be clarified here that pendency of criminal complaint under
Section 138 of the Act, would not be an impediment to the
proceeding with the civil suits. Therefore the enforcement of the
liability through a Civil Court will not dis-entitle the aggrieved person
from prosecuting the offender for the offence punishable under
Section 138 of the Act. Both these remedies can be simultaneously
availed of. It needs to be ensured here that the successful
termination of civil litigation does not mean or can be construed that
the criminal prosecution under such provision is an abuse of the
process of the Court justifying interference by this Court, under its
inherent powers.
The short question that has arisen before us in this
reference is the very legality of prosecution of the petitioner under
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Section 138 of the Act for the dishonour of the ten cheques which are
enumerated as below to lay emphasis:
1. Cheque No.362491 dated 23.09.2009 for
` 50,000/- of State Bank of India, Paharganj, New
Delhi.
` 1,00,000/- of State Bank of India, Paharganj,
New Delhi.
New Delhi.
New Delhi.
New Delhi.
New Delhi.
New Delhi.
` 50,000/- of State Bank of India, Paharganj, New
Delhi.
New Delhi.
10.Cheque No.362500 dated 25.11.2009 for
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New Delhi.
It is undisputed stand of the respondent that it had
initially presented cheque bearing No. 362491 dated 23.09.2009 for a
sum of ` 50,000/- to its banker for encashment on 24.09.2009, but
the same was dishonoured on 26.09.2009 with the memo
insufficient funds of the State Bank of India, dated 24.09.2009.
Complainant claims that it was when it confronted the accused and
on his assurance and asking, the complainant had presented all
these cheques together for encashment to its banker on 22.03.2010,
which were received back dishonoured with individual memos, all
dated 22.03.2010 bearing endorsement payment stopped by
drawer. It is through a consolidated registered AD notice dated
10.04.2010, the complainant had sought the payment from the
accused-petitioner of his amount of the cheques totalling to `
9,50,000/-.
Admittedly, the first cheque presented by the
complainant stood dishonoured and subsequently, as has been
alleged, the complainant on the asking of the accused had
simultaneously presented all the ten cheques for encashment.
Answering a similar situation, the Hon'ble Supreme
Court of India in the case of MSR Leathers versus S.Palaniappan
and another (2013) 1 Supreme Court Cases 177, has delved deep
into the provisions of the Act and has held that the holder of a
dishonoured cheque is not obliged to necessarily file a complaint
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upon very first dishonour of cheque, while overruling the ratio laid
down in Sadanandan Bhadran vs. Madhavan Sunil Kumar (1998)
6 SCC 514, which has laid down that the first default itself must result
in filing of prosecution or else results in forfeiture of right to bring
prosecution. It was further held by their Lordships that repeated
presentation/dishonour of the cheque gives rise to multiple causes of
action each time and thus has held it permissible that so long as it
satisfies all the requirements stipulated in the proviso to Section 138
of the Act, a complaint therefore, lies. From this, it ensues that so
long as the cheque remains valid and unpaid there is a continuing
obligation of the drawer to make good the same. It was further held
in the case of K.R.Indira (supra) by the Hon'ble Supreme Court that
a consolidated notice which provides sufficient information envisaged
by the statutory provision and there was a sufficient demand for the
payment of same covered by the cheques so dishonoured and the
mere fact that it was a consolidated notice, as in the present case,
does not invalidates such an act of the complainant. More so, the
legislative intent as is evident from Section 138 of Act is that if for the
dishonoured cheque, the payment is not made within the prescribed
days of the receipt of the notice, the drawer is liable for conviction
and where the cheque amount is paid within this period or before the
complaint is filed, the legal liability under Section 138 ceases to be
operative. However, the fulfilment of the concatenation of the
numbers of acts, so prescribed needs to be fulfilled. A similar view
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has been taken by the Hon'ble Andhra Pradesh High Court in the
case of M.Chandrashekar Rao vs. V.Kutamba Rao and another
2006 Crl.L.J.1399, where reliance has been placed upon
K.R.Indira's case (supra) to hold that such a consolidated notice is a
valid notice.
Moreover, examining from another angle, as to the filing
of separate complaints in respect of each dishonoured cheque, the
Hon'ble Apex Court alarmed over the astronomical rise in cases
instituted under the provisions of Section 138 of the Act in the case of
Damodar S.Prabhu vs. Sayed Babalal H. (2010) 5 Supreme Court
Cases 663, has sought to lay guidelines for the Courts below
holding that invariably the provision of a strong criminal remedy has
encouraged the institution of large number of cases that are relatable
to the offences contemplated by Section 138 of the Act. The large
number of the cases is choking criminal justice system and has
encouraged compounding of the offences even at belated stages. It
has also interpreted that the provisions of the Section 147 of the Act
are enabling provisions and that of providing for such compounding
of offences override the provisions of Section 320(9) Cr.P.C. It has
been stressed by their Lordships in Damodar S.Prabhu's case
(supra), as under:-
For instance, in the same transaction pertaining to a
loan taken on an instalment basis to be repaid in
equated monthly instalments, several cheques are
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taken which are dated for each monthly instalment
and upon the courts which may also have jurisdiction
in relation to the complaint. In light of this
submission, we direct that it should be mandatory for
the complainant to disclose that no other complaint
has been filed in any other court in respect of the
same transaction. Such a disclosure should be made
on a sworn affidavit which should accompany the
complaint filed under Section 200 Cr.P.C. If it is
found that such multiple complaints have been filed,
orders for transfer of the complaint to the first court
should be given, generally speaking, by the High
Court after imposing heavy costs on the complainant
for resorting to such a practice. These directions
should be given effect prospectively.
No doubt, Section 138(c) of the Act prescribes 15 days
on the receipt of the notice from the holder for the drawer to make
the payment of the said amount of money and by virtue of Section
142(b), the complaint is to be made within one month of date on
which the cause of action under Section 138(c) arises, but with the
amendment to Section 142 by Act No.55 of 2002, proviso has been
made that the cognizance of a complaint may be taken by the Court
even after the prescribed period, if the complainant satisfies the
Court that he has sufficient cause for not making a complaint within
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such period. Therefore, the statute holds a discretion for the Court to
waive such a mandatory period.
In Harman Electronics (P) Ltd. vs. National
Panasonic India Ltd. (2009) 1 SCC 720, a fine distinction has been
made in making a demand by giving a notice and of the receipt of
of the said notice and it was laid down that giving notice in the
context is not the same as receipt of the notice and therefore, it was
held that on the due receipt of the notice or its knowledge by the
drawer after the dishonour of the cheque when the prescribed period
has a lapse, the offence is deemed to have been committed, which
position was reiterated in Siva Kumar vs. Natarajan (2009) 13
Supreme Court Cases 623 by the Hon'ble Apex Court. Thus, from
this, it flows that it was only after a lapse of 15 days of the receipt of
the notice under Section 138 (c) of the Act by the accused and on
non-payment, the offence under Section 138 of the Act is deemed to
have been committed. Since, in the present case, there is a single
consolidated notice for all the ten cheques so dishonoured, so after
the period of 15 days of the receipt of this consolidated notice upon
non payment of the amount of these cheques, the offence under
Section 138 of the Act is deemed to have taken place. Thus, it
invariably gives rise to a single offence only as it is a single criminal
act of omission and conduct of the accused.
In a Single Bench view of this Court which has also
been relied upon on behalf of the respondent in the case of
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M/s Kumar Rubber Industries, Kapurthala versus Sohan Lal,
2002(2) RCR (Criminal) 111, it was answered by the learned Court
while interpreting the provisions of Section 219 Cr.P.C. that clubbing
of a number of cheques in the complaint cannot be a ground to
quash the complaint, further holding the position enunciated in the
case of Anita vs. Anil K.Mehara, 1996(1) RCR (Cri) 257, where
reliance was placed upon another Hon'ble Supreme Court view in
State of Andhra Pradesh vs. Kandimala Subbaiah and another
AIR 1961 Supreme Court 1241 and judgement of Delhi High Court
reported as Stalion Shox Pvt.Ltd. Co. vs. Auto Tensions (P) Ltd.,
1994 (1) RCR (Cri) 3, that where firstly no prejudice has been
caused to the accused by such a clubbing and there was one
transaction and the dishonoured cheques form part of the same very
transaction, the provisions of Section 219 Cr.P.C. will not be a bar to
such a recourse.
The definition a transaction as crops up is a group
of facts connected together as to be referred to be a single name, as
a crime, a wrong or any other subject of enquiry, which may be in
issue. The group of facts constituting a transaction are so connected
together as to involve certain ideas viz. unity, continuity and
connection. The question whether series of acts are so connected
together as to form the same transaction is a question of fact in each
particular case depending upon the proximity of time, place,
continuity of action and unity, purpose or design. Therefore, it is
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essential to look into such acts whether they are linked together to
present a continuous whole. Merely a common purpose may not
constitute same transaction.
Looking from another angle, the Court taking
cognizance of the complaint under Section 138 of the Act is required
to be satisfied as to whether a prima facie case is made out under
the said provision. Undoubtedly, the drawer of the cheque gets an
opportunity under Section 139 of the Act to rebut the presumption at
the trial and therefore, as has been laid down in M/s Modi Cements
Ltd. Vs. Kuchil Kumar Nandi, AIR 1998 Supreme Court 1057,
resorting to the exercise of the provisions of Section 482 Cr.P.C. in
quashing the complaint has deemed it to be highly uncalled for.
Similar views were expressed in the case of Chand Rattan Newar
vs. Shaym Rattan Newar 2000(4) RCR (Criminal) 416. It would be
highly too preposterous to invoke the jurisdiction of this Court under
Section 482 Cr.P.C. to quash a complaint barely on a single remiss
as even at the trial, complainant can exercise his discretion to
choose before the trial Court the cheques on which he would prefer
to maintain the complaint even if it is accepted as per the contentions
of the counsel for the complainant that provisions of Section 219
Cr.P.C. hold good in such an eventuality. It has even so laid down by
Hon'ble Madras High Court in the case of M/s Printo Stick and
another vs. M.L.Oswal 1997 Crl.L.J.2122. Reliance by learned
counsel for the respondent has also been placed on a view of
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Hon'ble Rajashtan High Court in the case of Naresh Chander vs.
State of Rajasthan and another 2000 Crl.L.J.5090, where it was
held otherwise that dishonour of number of cheques issued for one
transaction does not give rise to different causes of action.
Though, it is explicitly clear under the provisions of
Section 218 (1) Cr.P.C., which provides that for every distinct offence
of which any person is accused, there shall be a separate charge
and every such charge shall be tried separately. Section 220(1)
Cr.P.C. states 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. Section 220(1) and Section 223(d) Cr.P.C.
constitute an exception to Section 218 as well as Section 219 (2)
Cr.P.C. Since Section 220 Cr.P.C. is an enabling provision, therefore
separate trials in respect of the offence charged are not barred.
However, where series of acts are so connected together forming
same transaction, accused can be tried in one case by the Court.
In the light of the fact that in the present situation all the
ten cheques have been simultaneously presented to the banker on
the same day and dishonour so effected on the same very day for all
the cheques, regarding which a consolidated notice has been issued
calling upon the drawer to make good the payment of these cheques,
does not suffer from the vice of joinder of many offences in one trial.
It is after the expiry of the period of the receipt of the notice,
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prescribed under Section 138 (c) of the Act, offence under Section
138 of the Act is deemed to have been committed. Thus by all
means, the facts disclose as constituting only one offence and it
cannot be said that ten offences have been committed by the
accused and therefore, Section 219 Cr.P.C, does not come into play.
As per the allegations contained in the complaint, the
parties have transacted regarding business of eggs, in lieu of which it
is claimed that these cheques have been issued. Though, these
cheques may be of different dates and amounts, but the mere act of
giving these cheques together have merged to form the same
transaction especially when all the ten cheques have been presented
together on a particular day as per the averments of the complainant
at the asking of the drawer coupled with the demand having been
raised by the complainant through a consolidated notice giving rise to
the same transaction as all these series of acts are so inter-linked or
inter-connected together so as to form the same transaction of
dishonouring the cheques on a single day on the presentation of the
same as per the request of the drawer.
In the light of the arguments raised, applying the test
of continuity of action and commonness of purpose as there is a
continuous operation of acts leading to the same end, the complaint
filed cannot be said to be not maintainable.
Learned counsel for the petitioner could not convince
this Court how or in what manner any prejudice has been caused to
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the petitioner by such alleged joinder of the cheques issued by him.
Such complaint will facilitate speedy trial of dishonour of so many
cheques, saving precious time of the Courts by lessening their
burden and thereby resulting in speedy dispensation of justice which
is hallmark of obligation created by virtue of Articles 39A, 21 and 14
of the Constitution.
In the light of prologue discussions, we answer the
reference to the effect that in the case of dishonour of multiple
cheques presented together for which a consolidated single notice
has been issued, tantamounts to commission of a single offence
under Section 138 of the Act after the prescribed period of receipt of
the notice on non payment of the amount of the cheques, and,
therefore, a single complaint will be maintainable for all these
dishonoured cheques.
The matter be sent back to the learned Single Bench
for decision of the petition on merits.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
Judge
22.10.2013
neenu
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SH - Charashni Kumar Talwani v. M/s Malhotra Poultries, Naraingarh Road, Barwala

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