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DELHI HIGH COURT
Mukta Gupta, J.
Renaissance Furniture Pvt. Ltd. —Petitioner
versus
Gemini Realtech Pvt. Ltd. and Anr. —Respondents
Crl. M.C. Nos.2321, 2324, 2325, 2652 and 2653 of 2016 and Crl. M.A. Nos.9712, 9725, 9727, 11357 and 11359 of 2016
Decided on 6.1.2017
For the Petitioner:Mr. P.K. Dubey, Mr. Arjun Mahajan, Mr. Puneet Relan and Mr. Mridul Yadav, Advocates
For the Respondents:Mr. Rakesh Kumar Singh and Mr. Deepak Panwar, Advocates
IMPORTANT POINT
Dishonour of each cheque constitutes a separate offence giving rise to a separate cause of action.
Headnote:(A) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 219, 220 and 223—Dishonour of cheques—Clubbing of complaints— Dishonour of each cheque constitutes a separate offence giving rise to a separate cause of action—Sections 219 and 223 Cr.P.C. are exceptions to general rule that there should be separate charge and separate trial for each distinct offence—Provisions from Sections 219 and 223 (d) of Cr.P.C. are discretionary in nature and prime purpose is that by charging and trying together, there is no prejudice to any of parties and joint trial is in expediency of matter. (Para 7)
(B) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 219, 220 and 223—Dishonour of cheques—Clubbing of complaints— Offences in relation to dishonour of two cheques of same date have already been clubbed together—Even as per Section 219 Cr.P.C, only three offences of same kind within one year may be charged together—Even if court directs clubbing of complaints together, there being seven cheques which got dishonoured, petitioner will still have to face trial in three complaint cases as against five complaint cases—However, to seek this relief petitioner ought to have approached court in first instance itself and not at a belated stage—No illegality in order impugned warranting interference. (Paras 9 to 11)
Result: Petitions and Applications dismissed.
Mukta Gupta, J.—Five complaints were filed by the respondents under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘NI Act’) wherein the petitioner was also summoned as an accused. On the plea that the basis of all the five complaints was the same outstanding liability pursuant to a single transaction for which seven cheques were issued which bounced, the petitioner sought clubbing of the five complaints titled as Gemini Realtech Pvt. Ltd. & Anr. Vs. Renaissance Furniture Pvt. Ltd.(A-1) vide applications dated 5th February, 2016 which applications were dismissed by the learned Trial Court vide the impugned order dated 15th March, 2016. Hence the present petitions.
2. Relevant portion of the order of the learned Metropolitan Magistrate dismissing the applications is as under:-
“5. I have heard the arguments of both the sides and also gone through the record carefully. It must be noted here that the cheques in question, dates of their issuance, amounts of the cheques in question, return memos as well as dates of statutory legal notices and amounts claimed therein in these five matters are different. Ld. Counsel for the accused/applicant has argued that if all these five matters are clubbed together, then considerable time and effort will be saved. However, I do not find myself to be in agreement with this argument. Since the particulars of the cheque in question, return memos as well as statutory legal notice involved in this case are different from particulars of the cheques in question, return memos as well as statutory legal notice involved in the other four matters, I am of the opinion that clubbing these five mattes together will result in added confusion. It is also settled principle of law that dishonour of each cheque and subsequent non payment of the cheque amount by the accused within the prescribed period even after receipt of statutory legal notice constitutes a separate cause of action. Since the cheques in question involved in this case and in the other four matters were issued on different dates and for different amounts and statutory notices u/s 138 NI Act were also sent separately to the accused, no useful purpose would be served by clubbing all the five mattes together. I also place reliance upon the case of “Rajendra Chaudhary Vs. State of Maharashtra” 2007 Cr LJ 844 in this regard wherein it has been held by the Hon’ble High Court of Bombay that “each tender of a cheque and its dishonour gives rise to separate cause of action subject to a condition that separate notices are issued in respect of each of these cheques…. However, in a case where cheques were issued on different dates, presented on different dates and separate notices are issued in respect of each default, the transaction cannot be held to be a single transaction attracting provisions of Section 219 of the Code.”
3. Before this Court, learned counsel for the petitioner contends that the impugned order has been passed in violation of Sections 219, 220 and 223 Cr.P.C. which provides that when offences are committed in the course of same transaction or are so connected to form one or same transaction they should be tried together at one trial. It is submitted that clubbing of the complaints would facilitate the speedy trial which is the mandate of NI Act besides Articles 13A, 21 and 14 of the Constitution of India. The finding of the learned Trial Court that the cheques in question, dates of their issuance, amounts of cheques in question, return memos, statutory legal notices and amounts claimed being different, clubbing of the five matters would result in confusion is erroneous and illegal. Reliance is placed on the decisions of this Court reported as 2003 SCC OnLine Del 323 Gulshan Kumar Ahuja Vs. Veena Sharma, 2010 SCC OnLine Del 1876 Morgan Tectronics Ltd. & Ors. Vs. State & Ors., 2011 SCC OnLine Del 3112 M/s Indian Sulphacid Industries Ltd. Vs. M/s Emmsons International Ltd. and 2015 SCC OnLine Del 11862 Rajnish B. Bhat
