2018 (8) TMI 2020 - HC - Indian Laws

Dishonor of Cheque - repeated proceedings or not - petitioner submitted that the trial Court has committed an error in rejecting the application preferred by the petitioner - HELD THAT - The Court had transferred the police case to the Court of Judicial Magistrate First Class at Pen and direction was given in the circumstances that both the cases be tried in the same Court. The order does not indicate that there should be a joint trial of both the cases. The said order was passed on 23rd January, 2014 and it was never contended earlier that there has to be joint trial. It is also pertinent to note that the procedure contemplated for the trial of the complaint under Section 138 of the Negotiable Instruments Act which is summons triable case is different from that of the procedure contemplated for the trial of the case initiated by the police for the offence under Section 420 of Indian Penal Code which is warrant triable case. It is also noted that the affidavit of evidence was tendered by the complainant in the complaint case under Section 138 of Negotiable Instrument Act on 20th February, 2014. Thereafter, the complainant preferred another application for additional documents by filing additional affidavit of evidence on 2nd August, 2014. The said applications were allowed by the trial Court on 1st November, 2014. The petitioner challenged the said orders in various courts and ultimately could not succeed in the said proceedings. It is also apparent in the meantime the examinationinchief of the complainant is also recorded partly in the case initiated under Section 420 of Indian Penal Code. The said examinationinchief was recorded on 5th July, 2014. Thus, it is evident that both the cases have proceeded separately and not as a joint trial. It is thereafter this application was preferred by the petitioner on 27th July, 2018 which was rejected by impugned order. It also appears that the case was expedited by the Hon'ble Supreme Court. In the case under Negotiable Instrument Act, if a fine is imposed it is to be adjusted to meet the legal enforceable liability. There cannot be such a requirement in the offence under Indian Penal Code. The case under Negotiable Instruments Act can only be initiated by filing a complaint. However, in the case under Indian Penal Code such a condition is not necessary. There may be overlapping of the facts in both the cases but the ingredients of the offences are entirely different. Petition dismissed.

Summary

Issues Involved:
1. Legality of the order dated 31st July 2018 passed by Judicial Magistrate First Class, Pen.
2. Whether two different criminal cases arising from the same transaction can be prosecuted separately.
3. Applicability of Section 210 of the Code of Criminal Procedure.
4. Whether the cases under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code should be tried together.

Detailed Analysis:

1. Legality of the Order Dated 31st July 2018:
The petitioner challenged the order dated 31st July 2018, which rejected his application to complete the examination-in-chief in RCC No. 39 of 2014 before proceeding with the cross-examination in SCC No. 589 of 2010. The petitioner argued that the High Court had directed both cases to be tried together to avoid conflicting decisions. The trial court, however, insisted on proceeding with the cross-examination in SCC No. 589 of 2010 first. The High Court upheld the trial court's order, stating that the cases should be tried in the same court but not necessarily jointly.

2. Prosecution of Two Different Criminal Cases:
The petitioner contended that two different criminal cases arising from the same transaction should not be prosecuted separately. The High Court had earlier directed the transfer of the case under Section 420 of the Indian Penal Code to the same court handling the case under Section 138 of the Negotiable Instruments Act. However, the trial court decided to proceed with the cases separately. The High Court found no error in this approach, noting that the procedures and ingredients of the two offences are distinct.

3. Applicability of Section 210 of the Code of Criminal Procedure:
The petitioner argued that under Section 210 of the Code of Criminal Procedure, both cases should be tried together. The respondent opposed this, stating that the petitioner had not raised this issue earlier and that Section 210 was not applicable. The High Court agreed with the respondent, noting that the petitioner had not previously contended for a joint trial and that the section was not applicable at this stage.

4. Joint Trial of Cases under Different Sections:
The petitioner argued that trying the cases separately would expose his defense, allowing the complainant to fill gaps in the other case. The respondent countered that the cases under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code are distinct, with different procedures and ingredients. The High Court upheld the trial court's decision to proceed separately, emphasizing that the earlier order only directed the cases to be tried in the same court, not jointly. The court also noted that the proceedings had been pending since 2010, with significant delays caused by the petitioner.

Conclusion:
The High Court dismissed the petition, affirming the trial court's order to proceed with the cross-examination in SCC No. 589 of 2010 first. The court found no merit in the petitioner's arguments for a joint trial or the applicability of Section 210 of the Code of Criminal Procedure. The court emphasized the distinct nature of the offences and the need to avoid further delays in the proceedings. The petition was thus dismissed, and the trial was directed to proceed expeditiously.