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TMI Blog2010 (2) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... e second respondent, in full and final settlement of the dues, in view of the settlement. When both the cheques were presented for encashment, they were returned for want of funds. Then the complainant got issued legal notice on 25.10.2004 to both the petitioners informing about the dishonour of the cheques and demanding the due amount under the cheques, which were received by the petitioners/accused. Thereafter the present complaint is filed. 3. Now, the present petition is filed by both the accused raising several grounds; but, mainly pressing, the ground of the complainant filing a single complaint against both the accused; though separate cheques are issued by both the accused, contending that the complainant ought to have filed two separate complaints against each accused and therefore, the complaint is not maintainable. 4. The learned Counsel appearing for the second respondent/complainant contends that there is no illegality in filing a single complaint against both the accused. 5. The learned Counsel appearing for the second respondent brought to my notice two decisions of our High Court in E. Madhu, Krishnaveni Foods Pvt. Ltd., Chennai v. State 2002 (1) ALT (Cri) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sactions made by the accused. As such there was nothing wrong in fling a single complaint in respect of dishonor of several cheques. 8. Therefore, in substance, in both the above decisions, it was found that a single complaint is maintainable, though several cheques were issued by the accused. In the present case, the facts are slightly different. Here two cheques are issued by two different persons and this kind of position did not come up for consideration in the above two decisions. 9. There is no dispute that in this case, both the cheques were issued during the course of same transaction, as detailed in the complaint i.e., of there being certain land transaction between the parties; advance being paid by the present second respondent to the accused towards the purchase price and thereafter the transaction not taking place; on the demand of the complainant the matter being settled and amount being returned by way of above two cheques which were dishonoured. However, the amount received from the complainant was by another person also i.e., the brother of the petitioners and the amounts allegedly returned under the cheques was also on behalf of all the three persons; but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the loan amount and not the demand for payment of the cheque amount, nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which exposes the drawer for being proceeded against under Section 138 of the Act.... It has to be seen whether the above decision is applicable to the present case. 13. In this case, copy of the notice dated: 25.10.2004 issued to the petitioners is filed by the learned Counsel for the petitioners. In paragraph-6 of the notice, it is clearly mentioned that Please take further notice that if No. 1 and 2 of you fail to pay the amount of Rs. 11.44 Lakhs being the amount covered by two dishonored cheques issued by No. 1 and 2 of you within fifteen days from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850, this Court said that separate trial is the normal rule and joint trial is in exception when the accused have committed separate offences. 18. It was further observed that in view of the authoritative pronouncement of a three Judges Bench of the Hon'ble Apex Court, there is nothing illegal in trying the cases separately although the offences are said to have been committed in the course of the same transaction. All this is meant to save the accused from embarrassment and the provisions contained in Part-B of Chapter XVII are only enabling provisions. The infraction thereof is neither illegal nor would vitiate the trial. 19. In other decisions referred to also, what was held was that there was nothing illegal in trying the accused separately and the question was examined from the point of view, as to whether in such circumstances the accused can be tried separately, and not from the point of view, as to whether trying together is illegal. 20. The question with regard to separate accused would fall within the provisions of Section 223 of the Code of Criminal Procedure, 1973 (for short 'the Code'). Section 223: W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding theft, extortion, cheating, or criminal misappropriation, receiving, retaining or assisting in disposal of stolen property, possession of which is illegal etc., can be tried together and as per the proviso, where number of persons are charged with separate offences and such persons do not fall within any of the categories specified in Section 223, the Magistrate may if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. 21. In the present case, the facts fall within Sub-section (e) of Section 223 of the Code, as here both the petitioners have allegedly committed the same offence in the course of same transaction, as the transaction arises out of a land dealing for which advance was paid, as per the complainant, after settlement, the cheques were issued by both the accused, not only on their behalf, but on behalf of other members of the family towards discharge of a legally enforceable debt. Thus legally it is the same offence committed in the course of same transaction. The present case may also fall within Section 223(c), as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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