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2019 Supreme(Kar) 289
IN THE HIGH COURT OF KARNATAKA
Aravind Kumar, J.
S. Kamakoti – Appellant
Versus
I. Sarfaraz Nawaz - Respondent
Criminal Petition No. 1454 of 2018
Decided On : 09-04-2019
Prakash Goklaney, Adv., Aruna Shyam M, Adv.
The main legal point established in the judgment is that separate complaints must be registered and tried for offenses committed in respect of more than three cheques under Section 138 of the Negotiable Instruments Act.
Headnote:
Section 138 of NI Act - Clubbing of cases under Cr.P.C. - [COMPLAINTS] - [Section 200 Cr.P.C., Section 138 of Negotiable Instruments of Act, 1881] - The court discussed the provisions of Section 218, 219, and 220 of Cr.P.C. and their applicability to the clubbing of cases under Section 138 of the Negotiable Instruments Act. It emphasized the requirement of commonness or arising out of the same transaction for clubbing cases and held that separate complaints must be registered and tried for offenses committed in respect of more than three cheques.
Fact of the Case:
The respondent filed six complaints under Section 200 Cr.P.C. r/w Section 138 of the Negotiable Instruments Act, alleging that the petitioner was paid a sum of Rs. 91,35,000 as a hand loan and issued six post-dated cheques for repayment, which were returned due to 'stop payment'. The respondent sought punishment for the accused under Section 138 of the NI Act. The trial court allowed the clubbing of all cases together, which was challenged in the petition.
Finding of the Court:
The court found that the complaints arose from different transactions and the clubbing of cases would prejudice the rights of the petitioner. It held that separate trials for each case were necessary and set aside the order for clubbing the cases.
Issues: The main issue was whether the clubbing of cases under Section 138 of the NI Act was justified, and whether it would prejudice the rights of the accused.
Ratio Decidendi: The court emphasized the requirement of commonness or arising out of the same transaction for clubbing cases and held that separate complaints must be registered and tried for offenses committed in respect of more than three cheques.
Final Decision: The criminal petition was allowed, the order for clubbing the cases was set aside, and the jurisdictional magistrate was directed to hold independent trials for each case.
Aravind Kumar, J.
Respondent has filed six (6) complaints under Section 200 Cr.P.C. r/w Section 138 of Negotiable Instruments of Act, 1881 (for short 'NI Act') alleging that petitioner herein was paid in all a sum of Rs. 91,35,000/- between 12.01.2013 ending with 05.03.2014 as hand loan and for repayment of said loan accused had issued six (6) post dated cheques between the dates 21.10.2014 to 26.10.2014, which came to be presented for collection by the complainant and was returned by banker on the ground of "stop payment" and separate notices for each of the cheques issued came to be received by the accused and an untenable reply has been sent by the accused. Thus, in all six (6) complaints came to be filed as noted hereinabove in C.C.Nos.642/2017, 643/2017, 644/2017, 645/2017, 646/2017 and 647/2017. Hence, alleging that accused has committed an offence punishable under section 138 of NI Act, complainant sought for accused being punished.
2. During the pendency of proceedings before trial Court a memo came to be filed by complainant on 18.12.2017 to club all the cases together and to have a joint trial. In fact, counsel for accused has submitted no objection to the memo filed by complainant for being allowed. In this background, learned trial Judge held that complainant and accused are one and the same in all the cases and as such to avoid to multiplicity of proceedings memo filed by the complainant deserves to be allowed and accordingly allowed the same by order dated 18.12.2017. Same is under challenge in this petition.
3. I have heard the arguments of Sri.Prakash Goklaney, learned counsel appearing on behalf of Sri.Ramesh C.N., for petitioner and Sri. Suyog, learned counsel appearing on behalf of Sri.Aruna Shyam for respondent.
4. It is the contention of Sri. Prakash Goklaney, learned counsel appearing for petitioner that either in Cr.P.C. or in Negotiable Instruments Act any provision being available for clubbing six (6) cases together. He would also contend that transaction in question even according to complainant arose out of 14 transactions and as such complainant has filed six (6) different complaints and question of holding a joint trial would not arise. He would also submit that learned Magistrate erred in arriving at a conclusion that clubbing of all the cases, ignoring the fact that clubbing of all the cases would prejudice the right of petitioner and interest of accused ought to have taken care of. Hence, order of learned Magistrate would cause serious prejudice to the petitioner and prays for allowing the petition by relying upon the following judgments:
(i) CRL.M.C.No.646/2008 & CRL. M.A. No.2412/2008: HITESH NAGPAL vs. STATE AND ANOTHER
(ii) KERSHI PIROZSHA BHAGVAGAR vs. STATE OF GUJARAT AND ANOTHER, (2007) CriLJ 3958
(iii) CRL.MISC.(PET) No.942/2018: JAGMOHAN AND OTHERS vs. STATE AND ANOTHER
(iv) CRIMINAL MISC. PETITION No. 2433/2009: UMRAO MAL CHORDIYA vs. ASSAM ROLLER FLOUR MILLS LTD.
(v) CRL. R.C.No.3/2015 AND M.P.NO.1/2015: MOHAMMED KASIM vs. K.RAYAPPAN
(vi) CRL.O.P.No.21432/2002: MANJULA vs. M/S. COLGATE PALMOLIVE (INDIA) LTD.
(vii) CRL.A.Nos.701-729/2007: M/S.AGATE FINANCE LIMITED vs. M/S.L.S.P.AGRO LIMITED AND ANOTHER
(viii) CRIMINAL PETITION No.291/1998: TIRUCHANDOOR MURUHAN SPINNING MILLS (P) LTD. vs. MADANLAL RAMKUMAR COTTON AND GENERAL MERCHANTS
5. Per contra, Sri. Suyog, learned counsel appearing for respondent would support the order passed by trial Court by vehemently contending that impugned order has been passed by consent and as such, no petition would lie for challenging the same and also on the ground that no prejudice would be caused to accused if all the cases are tried together, since parties are same, transactions are identical and cheques in question having been issued for the similar transactions. Hence, he prays for dismissal of petition.
6. Having heard the learned Advocates appearing for parties and on perusal of records foundational facts emerging in the instant case are:
(i) Complain
