IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL PETITION NO : 2640 of 2009 Between: 1 Rajini Chandra , D/o. Maheshchand, R/o. 7-95/2, Ameerpet, Hyderabad. 2 Padmini Chandra , D/o. Maheshchand, R/o. 7-95/2, Ameerpet, Hyderabad. ..... PETITIONER(S) AND 1 State of A.P., rep by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad./ 2 B.Janardhan, S/o. B.Anantha Reddy, R/o. M.C.No. 535, Ward No.12, Banjara Hills, Hyderabad .....RESPONDENT(S) Petition under Section ____ of Crl.P.C praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to quash CC.No. 181/2009 on the file of XIX A.C.M.M. Nampally, Hyderabad. The Petition coming on for hearing, upon perusing the Petition and the grounds filed in support thereof and upon hearing the arguments of Mr.K. LALITHA, Advocate for the Petitioner and of the Public Prosecutor, on behalf of the Respondent. The Court made the following: ORDER *THE HON’BLE SRI JUSTICE P. SWAROOP REDDY +Crl.P.No.2640 of 2009 % 11-02-2010 # Rajini Chandra and another ..Petitioners Vs. $ State of AP and another ..Respondents ! Counsel for the Petitioners: Smt. K. Lalitha, Advocate ^ Counsel for the Respondent No.1: Addl. Pubic Prosecutor ^Counsel for Respondent No.2 : Sri C. Pravin Kumar < Gist: >Head Note ? Citations: 1) 2002 (1) ALT (Crl) 157 (AP) 2) 2003 (1) ALD (Crl) 538 (AP 3) AIR 1965 SC 1248 4) 2002 (1) ALD (CRL) 123 5) 2003 SCC (CRL) 2002 6) 1973 SCC (CRL) 783 7) AIR 1963 SC 1850 PSR, J. Crl.P.No. 2640 of 2009 O r d e r: This petition is filed by the petitioners-accused for quashing the proceedings pending against them in C.C.No. 181 of 2009 on the file of the learned XIX Additional Chief Metropolitan Magistrate, Hyderabad. The offence alleged is one under the Negotiable Instruments Act. 2. The present-second respondent, filed the complaint under section 138 of the Negotiable Instruments Act, against the petitioners contending that with regard to certain land transactions, the petitioners became due certain money to the complainant; the petitioners who received Rs.10.00 Lakhs agreed to return the same with interest @ 24% per annum and for the total sum of Rs.11.44 Lakhs they issued two cheques on 14-10-2004 drawn on Bank of India, Kachiguda Branch, Hyderabad, in favour of the 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, M/s. Krishnaveni Foods Pvt. Ltd., Chennai v. State[1] and B. Venkat Narendra Prasad v. State of AP[2]. 6. E. Madhu’s case (1 supra) was a case where twenty cheques were issued by the same accused; all the cheques were dishonored and single complaint was filed instead of filing individual complaints. In paragraph-12 of the said Judgment it was observed: “Apropos the second contention that separate complaints ought to have been filed in respect of the twenty cheques, it is desirable as per the requirements of sections 218 and 219 of the Code of Criminal Procedure to file separate complaints, but it is not mandatory requirement under law as held by the Hon’ble Apex Court in Ranchood Lal v. State of Madhya Pradesh[3]. In identical facts and circumstances this court City Automobiles v. J.K. Industries Ltd.,[4] has taken the view that issuing a cheque in discharge of a separate debt constitutes a separate offence and although they are all the offences of the same kind since facts do not warrant to conclude that those series of offences have been committed in the course of same transaction, one complaint cannot be filed adverting to the provisions of Sections 218,219 and 220 of the Code, inasmuch as those provisions incorporate a general rule and are not mandatory there is nothing illegal in filing a single complaint nor the trial would be vitiated on account of the same. Therefore, even the second contention of the learned counsel appearing for the petitioners merits no consideration.” 7. I n B. Venkat Narendra Prasad (2 supra), while referring to E. Madhu’s case (1 supra), this court, in paragraph- 17 observed: “The facts of the case would go to show that the accused had a running ledger account with the second respondent and the purchases and payments made by them were debited and credited in the account books which were maintained in the regular course of business. Thus, the accused-company had a single ledger account with the 2nd respondent in respect of all transactions made by the accused-company. Therefore, there is nothing wrong infilling a single complaint in respect of dishonour of several cheques. The contention of the learned counsel for the petitioners on this aspect is thus devoid of merit. Thus, it was observed that the accused/company had a single ledger account with the second respondent in respect of all the transactions 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 the cheques were issued by the present petitioners to the complainant. 10. The learned counsel for the petitioners submitted written arguments contending that the quash petition is filed on the ground that basing on two cheques issued by two different persons single complaint is not maintainable; that our High Court and the Hon’ble Supreme Court in several decisions held that in respect of two different cheques issued by one drawer one single complaint is maintainable and there is no need to file different complaints for dishonour of each cheque; that in all the decisions it is always one accused and one or more complainants. In the judgment reported in E. Madhu case (1 supra) in course of business, one accused issued twenty cheques and against dishonour of all the cheques, when complaint was filed, it was held that one complaint is maintainable; but, that was a case of one accused. Thus in that case, it was held that a single complaint can be maintained for dishonour of several cheques, when they are issued by the same drawer. In K.R. Indira v. Dr.G.Adinarayana[5], it was held that in the absence of specific demand for the cheque amount in the notice, the notice is invalid; in the present case, there are two cheques and notice was given for consolidated amount without specifying the liability and as such it is invalid. 11. Now the point that arises for consideration is whether in the present set of circumstances, where there are two cheques issued by two different persons a single complaint is maintainable? 12. With regard to the question raised by the petitioners that as there is no proper notice; on account of the decision of the Hon’ble Apex Court in Indira’s case (5 supra), the complaint is not maintainable, the position in Indira’s case (5 supra) was four cheques were issued, two in the name of the husband and two in the name of the wife; the cheques bounced, notices were issued to pay the cheque amount which was received by the accused. Various contentions were raised before the Hon’ble Supreme Court on the relevant question of validity of the notice. In para-11 of the above judgment, the Hon’ble Apex Court observed: “………Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand 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 date of receipt of this notice, my client will also initiate criminal proceedings under section 138 of the Negotiable Instruments Act, against No.1 and 2 of you holding both of you liable for all costs and consequences there of”. Thus the requirements as referred to in the above V. Indira’s case (5 supra) are complied with, as, as seen from the above Judgment, in that case, the notice did not specifically contain any demand for payment of the cheque amount, which is not the case in the present case, as seen from the above extracted portion of the notice. 14. Now, the question is in the present circumstances, whether a single complaint is maintainable? 15. All the decisions relied on by the learned counsel for the petitioners, as well as the second respondent, deal with the case of the single complaint being filed for different cheques issued by one accused and the question that came up for consideration was whether in such circumstances i.e., when several cheques were issued by one accused, a single complaint is maintainable. The question when cheques are issued by two different persons, whether a single complaint is maintainable, was not considered in any of the above decisions. 16 I n City Automobile’s case (4 supra) our High Court considered the law on the question in detail and observed that though several cheques were dishonoured on one and the same day and one notice was issued demanding payment of the amounts covered by the dishonoured cheques, those two acts cannot make, what otherwise independent transactions as the same transaction, as dishonour of each cheque itself is an offence, by issuing common notice, all such offences of the same kind cannot be construed as a one single offence or as offences committed in the course of the same transaction. Thus the cheques issued cannot be said to have been issued in the course of same transaction. 17. In paragraph-42 of City Automobiles’ case (4 supra), our High Court referred to the decision of the Hon’ble Supreme Court in V.N. Kamdar v. Municipal Corporation of Delhi[6] wherein the Hon’ble Apex Court held: “The normal rule under the Criminal Procedure Code is to try each accused separately when the offence committed by him is distinct and separate. The provisions of Sections 233 to 239 would indicate that joint trial is the exception. In State of Andhra Pradesh V. Cheemalapati Ganeswara Rao[7] , 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 S. 223 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). S.223: What persons may be charged jointly: The following persons may be charged and tried together, namely:--- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) Persons accused of more than one offence of the same kind, within the meaning of S.219 committed by them jointly within the period of twelve months; (d) Persons accused of different offences committed in the course of the same transaction. (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of, or attempting to commit any such last-named offence; (f) persons accused of offences under section 411 and 414 of the Indian Penal Code (45 of 1860), or either of those sections in respect of stolen property the possession of which has been transferred by one offence; (g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of, or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this Section, the (Magistrate or Court of Session) may, if such persons by an application in writing, so desire, and (if he or it is satisfied) that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. Thus, S. 223 (a) says that persons accused of the same offence committed in the course of the same transaction can be charged joint; S. 223 (c) says that Persons accused of more than one offence of the same kind, within the meaning of S.219 committed by them jointly within the period of twelve months can be tried jointly. Under Section 223 (e) persons accused of an offence, including 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 S. 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 per which Persons accused of more than one offence of the same kind, within the meaning of S.219 committed by them jointly within the period of twelve months can be tried jointly. 22. When the decisions referred to above confirm the view that, in the circumstances contemplated under section 219 of the Code, offences can be tried together, in the circumstances cases falling under section 223 (c) of the Code cannot be said to be tried together. Further, the proviso to S.223 of the Code, which contemplates that where number of persons are charged with separate offences and they do not fall within any of the categories specified in S.223 of the Code, on an application by such accused, all the persons can be tried together, shows that even in cases where the provisions of S. 223 are not covered also, in certain circumstances, joint trial can be held with regard to different accused i.e., on an application by the accused to the concerned Magistrate. Thus joint trial is not totally prohibited and that would not vitiate the trial, as long as no prejudice is shown to have been caused to the accused. 23. I n City Automobiles case (4 supra) it was held that provisions contained in Part-B of Chapter XVII under which the present provisions fall are only enabling provisions and the infraction thereof is neither illegal nor would vitiate the trial. Thus even assuming that there is some procedural illegality that would not vitiate the trial. 24. In all these circumstances, it has to be held that in the present case there is no illegality in holding a joint trial. 25. In the result, the petition fails and it is accordingly dismissed. ______________________ P. SWAROOP REDDY, J. February 11, 2010. *BVS [1] 2002 (1) ALT (Crl) 157 (AP) [2] 2003 (1) ALD (CRL) 538 (AP) [3] AIR 1965 SC 1248 [4] 2002 (1) ALD (CRL) 123 [5] 2003 SCC (CRL) 2002 [6] 1973 SCC (Crl) 783 [7] AIR 1963 SC 1850