2022 (3) TMI 313 - HC - Indian Laws

Dishonor of Cheque - discharge of legally enforceable debt or not - dishonour of different cheques and non-payment of that amount after receipt of notice - separate liability for different cheques - HELD THAT - For language of Sections 219 and 220 Cr.PC, it is apparent that these Sections, as exceptions to general principle propounded in Section 218 of Cr.PC, are enabling provisions whereby two or more different offences may be tried together subject to confirming the ingredients required for that as provided in these Sections, but charging with and trying together by Court in these Sections is not mandatory and these previsions do not prohibit separate trial for different offences committed by an accused. The Court is at liberty to charge with and try the accused under Sections 219 and 220 Cr.P.C. in a single trial or in different trials, as normal Rule is separate trial for different and distinct offences committed by accused. In a case under NI Act, cause of action to file a complaint arises when the accused fails to make the payment of amount of money to payee/holder in due course of cheque within 15 days of receipt of notice issued within 30 days of dishonour of cheque. Prior to aforesaid period, there is no cause of action to complainant to prefer a complaint under Section 138 of NI Act. Different cheques, may be issued for discharging the liability, arising out of one and same transaction, are separate entities and dishonour of each and every cheque gives a right to complainant to issue notice to drawer in terms of Section 138 of NI Act and on failure to make payment within period prescribed in Section 138 of NI Act entitles the complainant to file a complaint with respect to such dishonour of cheque - Dishonour of different cheques and non-payment of that amount after receipt of notice constitutes a different offence. Therefore, complainant has right to file and maintain separate complaint for dishonour of each and every cheque on failure to make payment by payer after receipt of notice under Section 138 of NI Act. In present case, Notice of Accusation has already been put to accused in both complaints and complainant has already combined three cheques in one case and two cheques in another case and has filed only two complaints with respect to five cheques and liability of accused in both cases is different in nature as in one case cheques are stated to have been issued to discharge the debt of financial assistance provided by an individual, whereas, in another case cheques are stated to have been issued for discharging the liability towards the purchase of goods from sole proprietorship concern. There are no merits in petition and no illegality, irregularity or perversity in the impugned order - petition dismissed.

Summary

Issues:
1. Application to charge and try the accused together in two cases under Sections 219 and 220 of Cr.PC.
2. Interpretation of Sections 218, 219, and 220 of Cr.PC regarding joinder of charges.
3. Consideration of separate trials for distinct offences committed by the accused.
4. Application of provisions of NI Act regarding dishonour of cheques and filing of complaints.

Analysis:
1. The petition challenged the order dismissing the application by the accused to charge and try together in two cases under Sections 219 and 220 of Cr.PC. The accused contended that the alleged offences arose from the same transaction within 12 months and thus should be tried together. The complainant argued that the transactions in the two complaints were distinct, and therefore, the cases should not be clubbed for trial. The Court noted that the accused's application had been previously dismissed, and the provisions of Cr.PC allowed for separate trials for distinct offences.

2. The Court analyzed Sections 218, 219, and 220 of Cr.PC regarding the joinder of charges. Section 218 mandates separate charges and trials for distinct offences, but Sections 219 and 220 provide exceptions. These exceptions allow for charging and trying together multiple offences of the same kind within 12 months or connected acts forming the same transaction. The Court emphasized that these exceptions were enabling provisions, not mandatory, giving the Court discretion to decide on separate or joint trials based on the circumstances of each case.

3. The judgment referred to legal precedents to support the principle that separate trials are the norm, and joint trials are exceptions. It cited cases where the Supreme Court upheld separate trials even when joint trials were permissible. The Court highlighted that the provisions of Cr.PC regarding joint trials were enabling and did not prohibit separate trials for different offences committed by an accused. Therefore, the Court had the liberty to decide on joint or separate trials based on the facts and legal provisions applicable to the case.

4. Regarding the application of provisions of the NI Act, the Court explained that the cause of action to file a complaint arises when the accused fails to make payment within the specified period after dishonour of cheques. Each dishonoured cheque constitutes a separate offence, entitling the complainant to issue separate notices and file separate complaints. The Court clarified that combining instances of dishonour in a single notice and complaint was permissible, but the separate complaints in this case were justified due to the distinct nature of the liabilities in each case.

In conclusion, the petition was dismissed as the Court found no merit in challenging the order, considering the facts and legal principles discussed in the judgment.