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HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, J.
Mohammed Kasim
Versus
K. Rayappan
Crl.R.C. No. 3 of 2015 & M.P. No. 1 of 2015
Decided on: 13-01-2015
Negotiable Instruments Act - Section 138 – Criminal Procedure Code – Section 190 (1)(a) - Dishonor of cheque – Quash of order - Miscarriage of justice - Material on record discloses that petitioner has floated a company in name and style Real way Investment and Forex Trading India Limited and running same at Complex - Advertisements have been made in newspapers that if deposits are made as per schemes rich dividends would be paid - Believing same respondent deposited and thereafter a further sum was also deposited by way of ICICI Cheques - Thereafter a sum of was paid in cash - In all was deposited - Dividends for first two months alone was paid – Thereafter despite request no payment was made - It is further case of complainant that in capacity of an authorized signatory of Real way Enterprises India Private Limited 1st petitioner gave a cheque bearing drawn on ICICI Bank, West Branch - Respondent presented cheque in ICICI Bank - Cheque was returned with an endorsement funds insufficient - Statutory notice given was acknowledged and petitioner requested for two weeks time and further requested to represent cheque - Cheque represented on said date was returned – Hence on complaint under Section 138 of the Negotiable Instruments Act, read with 190 (1)(a) Criminal Procedure Code a case has been taken on file by Judicial Magistrate – Held, In case hand for each cheque a separate notice has been issued - Separate complaint has been preferred and taken on file respectively - In case when a single complaint was preferred in respect of dishonored cheques Honble Division Bench held that Section 219 Criminal Procedure Code permits joiner of all charges and further observed that proceedings instituted cannot be quashed on plea raised - Bench further held that in view of fact that demand was also made by complainant on dishonoring of cheques by giving one lawyers notice and not several demands Court are of view that accused may be charged and tried at one trial for several such offences because series of acts are so inter-linked or inter-connected together so as to form same transaction of dishonoring cheques therefore it cannot be said that complaint is vitiated - As observed earlier in case on hand demands are separate and cases have been taken on file in respect of dishonor of cheques issued - Unlike reported case it is not a single complaint - Had there been a single complaint in respect of three cheques issued and dishonored there could be a case for joiner of 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 only exception to above normal rule as observed in reported case was that there was a single complaint - contention of counsel for petitioner that there would be a likelihood of imposing different punishments in each Summary Trial case and thus petitioner would be greatly prejudiced cannot be countenanced - Complaints have been taken on file respectively - As rightly observed by lower Court Criminal Miscellaneous Petition filed is nothing but an attempt to protract trial - All three cases are pending on file of same Court – Hence Judicial Magistrate is directed to post on same hearing date and proceed further in accordance with law - Criminal Revision case is disposed of
1. Criminal Revision Case is preferred against the order passed in C.M.P.No.2015 of 2014 dated 17.09.2014 on the file of the learned Judicial Magistrate No.1, Gobichettipalayam.
2. Material on record discloses that the petitioner has floated, a company in the name and style “Realway Investment and Forex Trading India Limited” and running the same, at D.No.86, Sri Subburam Complex, Kutcherry Medu, Gopichettipalayam. Advertisements have been made in newspapers that if deposits are made as per the schemes, rich dividends would be paid. Believing the same, on 28.03.2009, the respondent deposited Rs.5,00,000/- and thereafter, a further sum of Rs.2,80,000/- was also deposited by way of ICICI Cheques. Thereafter, a sum of Rs.2,20,000/- was paid in cash. In all Rs.10,00,000/- was deposited. Dividends for the first two months alone was paid. Thereafter, despite request, no payment was made.
3. It is the further case of the complainant that on 28.05.2010, in the capacity of an authorised signatory of Realway Enterprises India Private Limited, the 1st petitioner gave a cheque bearing No.002841 for Rs.3,28,000/- drawn on ICICI Bank, West Mambalam Branch, Chennai. The respondent presented the cheque on 01.06.2010 in ICICI Bank, Gopichettipalayam. The Cheque was returned with an endorsement “funds insufficient”. Statutory notice given was acknowledged and the petitioner requested for two weeks time, and further requested to represent the cheque on 15.06.2010. Cheque represented on the said date was returned. Hence, on the complaint under Section 138 of the Negotiable Instruments Act, read with 190 (1)(a) Cr.P.C, a case in S.T.C.No.2566 of 2010 has been taken on file by the learned Judicial Magistrate No.1, Gopichettipalayam.
4. Complaint further discloses that on 28.12.2010, when the respondent, met the petitioner, an assurance was given that for the deposits made, dividend would be paid. Cheques dated 28.12.2010, bearing No.002818 for Rs.20,00,000/- and another postdated cheque dated 10.02.2011, bearing No.002819 for Rs.10,09,500/-, both drawn on ICICI Bank, West Mambalam Branch, Chennai, were given. Cheque dated 28.12.2010 presented for encashment on 20.01.2011 was returned with an endorsement “funds insufficient”. Statutory notice was returned. The petitioner assured payment within two weeks.
5. Assurance was not honoured. Therefore, another complaint under Section 138 of the Negotiable Instruments Act r/w. 190(1)(a) Cr.P.C., STC No.1029/2011, has been preferred and that the same has been taken on file by the learned Judicial Magistrate No.1, Gopichettipalayam.
6. Post dated cheque dated 10.02.2011, was also dishonoured. Statutory notice dated 24.03.2011 was returned. Hence another complaint made was taken on file in S.T.C.No.1166/2011 on the file of the learned Judicial Magistrate No.1, Gopichettipalayam.
7. Pending trial of the abovesaid cases, the petitioner seemed to have filed transfer O.P.No.1589 of 2013 on the file of the Chief Judicial Magistrate, Erode, for transferring all the cases to the same Court. Thereafter, the said petition has been sent to the learned Principal District Sessions Judge, Erode. Subsequently, the petitioner has not pressed Transfer O.P.No.1589 of 2013.
8. After the completion of the complainant's evidence in the abovesaid three cases, pending on the file of the same learned Judicial Magistrate No.1, Gopichettipalayam and after examination of the accused under Section 313(1) Crl.P.C., Crl.M.P.No.2015 of 2014 has been filed in STC No.2566 of 2010 for a prayer to have joint trial in STC No.1029 of 2011 and STC No.1166 of 2011 on the grounds inter alia, that all the three cases arose out of three cheques issued within a period of 12 months and that the criminal cases are within a span of 12 months. The said application has been rejected on the ground that when Transfer O.P.No.1589 of 2013, was not pressed, present application is only to protract the trial, in the above said criminal cases.
9. By observing that
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