Sunday, 26 May 2019

Whether consolidated complaint for dishonour of two cheques is maintainable if those cheques were issued on different dates?

It has been argued on behalf of the petitioner that a great prejudice is likely to be caused to the defence of the petitioner by such joinder of charges in one trial. This has been disagreed to the learned Counsel for respondent No. 2. I think, the learned Counsel for respondent No. 2 is right in expressing his such a disagreement. Reason being that the charge will be framed by the trial Court in such a manner as would contain two heads of offence relating to dishonour of two different cheques, and I would say that the trial Court would be well advised to do so. If this is done, the petitioner would get an ample opportunity to defend himself against the two heads of offence with which he would be charged in this case and would be in a position to prepare adequately on his defence. If it is the contention of the petitioner that the petitioner would like to advance two different kinds of defence for dishonour of these two separate cheques, even then, I do not think that any impediment in this regard would be encountered by the petitioner for the reason that the complainant would have to adduce evidence in a specific manner to prove these two different heads of offence and that will result in giving sufficient notice of allegations being made against the petitioner, which shall be enough for him to put up his different stands of defence in respect of these two separate offences. But, these two offences, as stated earlier, having been committed in one and the same transaction, would certainly require a joint trial with the aid of Section 220 of Cr.P.C., which is also a view taken in this case by the Courts below and rightly so.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 884 of 2017

Decided On: 06.02.2018

Umakant  Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:
S.B. Shukre, J.

Citation: 2019(2) MHLJ 618


1. Rule. Rule made returnable forthwith. Heard finally by consent.

2. The petitioner is being tried for dishonour of two cheques, one dated 21/10/2014 and other dated 27/10/2014, both issued for Rs. 80,000/- each. They were issued towards discharge of debt of Rs. 1,60,000/- that the petitioner alleged to have owed to the complainant-respondent No. 2. The petitioner filed an application [Exh. 31] contending that as the cheques were of different dates and were dishonored on different dates, gave rise to different causes of action and, therefore, for the alleged dishonour of these two cheques, two separate complaints ought to have been filed by respondent No. 2 and as those separate complaints were not filed, the present complaint consolidating these two offences was not maintainable. The learned Magistrate, Pusad by his order passed on 29/06/2017 rejected the application.

3. The order of the learned Magistrate was challenged before the Additional Sessions Judge, Pusad, District Yavatmal by fling an revision application bearing Criminal Revision No. 14/2017. The criminal revision was also dismissed on merits on 18/08/2017 by the learned Additional Sessions Judge, Pusad.

4. Now the petitioner - accused has challenged both these orders before this Court in the present writ petition. I have heard the learned Counsel for the petitioner and the learned Counsel for respondent No. 2. I have gone through the impugned judgment and order and also the documents filed on record.

5. On going through the documents placed on record including the complaint, application at Exh. 31 and the impugned orders, I find that no case has been made out by the petitioner to make any interference with the impugned orders. Interference with the impugned orders in exercise of the writ jurisdiction would be possible only when it is shown by the petitioner that the impugned orders are manifestly illegal or are likely to result in great injustice in the nature of deprivation of legal rights of the petitioner.

6. In the present case, according to the complaint filed by respondent No. 2, two cheques dated 21/10/2014 and 27/10/2014 were issued for Rs. 80,000/- each in favour of respondent No. 2 and they were so issued in discharge of the debt of Rs. 1,60,000/- owed by the petitioner to respondent No. 2. The complaint also discloses that the first cheque was dishonored on 25/10/2014 and the second cheque on 28/10/2014. But the fact remains that these cheques were issued for discharging one and the same debt by the petitioner, as alleged in the complaint. Therefore, even though they were dishonored on different dates, such dishonour would not constitute separate causes of action and it cannot be said that two separate offences were so committed as not to be part of one and the same transaction. The reason being that they were issued for discharging one and the same debt and to the same party and that they were founded on the same basic cause of action, which was the debt of Rs. 1,60,000/- alleged to be incurred by the petitioner towards respondent No. 2. Under Section 220(1) of the Code of Criminal Procedure, if in one series of acts which are so connected with each other 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. As just stated, in the present case, the acts of dishonour of two cheques have been committed by the same person, they have been committed also against the same person and they are connected with each other in a manner as to form the same transaction, which was the transaction of discharge of overall debt of Rs. 1,60,000/-. Therefore, I do not see any illegality or arbitrariness or perversity in the impugned order by which the application vide Exh. 31 filed by the petitioner has been rejected.

7. It has been argued on behalf of the petitioner that a great prejudice is likely to be caused to the defence of the petitioner by such joinder of charges in one trial. This has been disagreed to the learned Counsel for respondent No. 2. I think, the learned Counsel for respondent No. 2 is right in expressing his such a disagreement. Reason being that the charge will be framed by the trial Court in such a manner as would contain two heads of offence relating to dishonour of two different cheques, and I would say that the trial Court would be well advised to do so. If this is done, the petitioner would get an ample opportunity to defend himself against the two heads of offence with which he would be charged in this case and would be in a position to prepare adequately on his defence. If it is the contention of the petitioner that the petitioner would like to advance two different kinds of defence for dishonour of these two separate cheques, even then, I do not think that any impediment in this regard would be encountered by the petitioner for the reason that the complainant would have to adduce evidence in a specific manner to prove these two different heads of offence and that will result in giving sufficient notice of allegations being made against the petitioner, which shall be enough for him to put up his different stands of defence in respect of these two separate offences. But, these two offences, as stated earlier, having been committed in one and the same transaction, would certainly require a joint trial with the aid of Section 220 of Cr.P.C., which is also a view taken in this case by the Courts below and rightly so.

8. This is also the view taken by the Division Bench of Madras High Court in the case of Manjula v. Colgate Palmolive (India) Ltd. reported in MANU/TN/2780/2006 : 2007(2) ALL MR (JOURNAL) 11 relied upon by the learned Counsel for respondent No. 2, in which facts were substantially similar.

9. However, the view taken by the learned Single Judge of this Court in the case of Smt. Mumedha w/o Sunil Chitpur v. State of Maharashtra and another reported in MANU/MH/0863/2010 : 2010 ALL MR (Cri) 3232 on facts, would not be applicable to the present case, as a specific finding was recorded by the learned Single Judge that dishonour of the three cheques did not constitute a single transaction attracting the provisions of Section 219 of Cr.P.C.

10. In the circumstances, I do not find any merit in this petition and it deserves to be dismissed. The writ petition stands dismissed.

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