1 Cri.Appl.No.1726 of 2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1726 OF 2004 Vilas Kundanmal Lodha, Age-54 years, Occu-Business, R/o.Lodha Heights, Prop.Lodha Constructions, Chitale Road, Ahmednagar APPLICANT VERSUS M/s.Kirtani Constructions Pvt.Ltd., By its Director, Bhagvandas Khiyaldas Kirtani, Basement Shop No.2, Dhoot Complex, Savedi Road, Ahmednagar RESPONDENT Mr.R.R.Mantri, learned counsel for the applicant. Mr.V.S.Bedre, learned A.P.P. for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 07/03/2011 ORAL JUDGMENT : 1. By the present application u/s. 482 of The Cr.P.C., the applicant has approached this Court for quashing and to set aside the order dated 08/07/2004 passed below Exh.1 in STC No. 2463/2002, 2498/2002 by J.M.F.C. Ahmednagar and to direct the said Court to decide these two cases on the basis of evidence recorded in STC No.2497/2002, as per earlier order dated 2 Cri.Appl.No.1726 of 2004 12/08/2003. 2. Record shows that Rule was issued in this application vide order dated 23/09/2004. 3. Heard learned counsels for respective parties. The relationship between the applicant and respondent is not under dispute. So also, it is not under dispute that the respondent/complainant is doing the business of building construction under the name and style M/s. Kirtani Constructions Pvt.Ltd., the Company established and registered under the Companies Act, 1956. The respondent is the contractor whose services are engaged by the complainant. It is also not under dispute that for the construction work done by the respondent, 3 cheques were issued by the applicant herein dated 28/02/2002, 01/03/2002, 02/03/2002. Those cheques were deposited by the respondent herein for en-cashment, but they were bounced. After completing the requisite procedure, it appears that 3 cases were filed by the respondent herein against the applicant in the Court of J.M.F.C. Ahmednagar bearing STC No.2463/2002, 2497/2002, 2498/2002 u/s. 138 of The N.I.Act. It appears that during the pendancy of those 3 cases before the Trial Court, applications was moved at Exh.13 in STC No.2498/2002, at Exh.16 in STC No.2463/2002, and at Exh.87 in STC No.2497/2002 on behalf of the present applicant to record common evidence in all these 3 criminal cases. On notice of those applications, say was filed by the respondent herein respectively at Exh.88, 17 and 14 in 3 Cri.Appl.No.1726 of 2004 the respective 3 criminal cases. All those applications were disposed of by way of common order dated 12/08/2003, passed by the Chief Judicial Magistrate, Ahmednagar in STC No.2497/2002. In the said order, it is observed by the learned Chief Judicial Magistrate, Ahmednagar in para no.3 as follows : ”Whether any prejudice is going to be caused to the complainant in proceeding with the cases on the basis of common evidence so as to avoid omissions, contradictions and to save litigating time. In this regard, nothing has been pointed out to me by the complainant. At the most, recording common evidence in all the cases can be prejudicial to the accused, if he is of the same view. However, in the instant cases, the accused has come forward for common evidence by tendering the applications. Hence no prejudice is going to be ensued to either party if case is proceeded by common evidence. All the applications were allowed by the learned Chief Judicial Magistrate by way of common order.” 4. Admittedly order passed by the learned Chief Judicial Magistrate, Ahmednagar dated 12/08/2003 was not challenged by the respondent herein or by either parties. Subsequently, order came to be passed on 08/07/2004 by learned J.M.F.C., the order impugned in this application, wherein without application by either of the parties, order passed on 12/08/2003 was reversed by J.M.F.C. Ahmednagar and further passed the order to record the evidence in 4 Cri.Appl.No.1726 of 2004 sTC No.2497/2002 separately, therefore the motive of order of common evidence is frustrated. Now the complainant has produced his affidavit, and the accused to carry cross examination. In view of this order, the applicant, who was accused in those 3 cases is before this Court. 5. During the course of submissions across the bar, learned counsel for applicant drew my attention towards Section 219 of The Cr.P.C., which read as follows : Section 219 : Three offences of same kind within year may be charged together : 1. When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. 2. Offences are of the same kind when they are punishable with the same amount of punishment under the same sect5ion of the Indian Penal Code (45 of 1960 or of any special or local law. The relationship between the applicant and the respondent as well as the transaction between the parties interse is not disputed at all. It is also not under dispute that respondent has filed 3 separate cases bearing STC No.2463/2002, 2497/2002, 2498/2002 u/s. 138 of The N.I.Act against the applicant, on account of dishonour of cheques 5 Cri.Appl.No.1726 of 2004 issued by the applicant respectively dated 28/02/2002, 01/03/2002, 02/03/2002. It is urged that all these 3 transactions between the same parties arises out of the same business transaction and hence squarely covered under the provisions of Section 219(1) of The Cr.P.C. It is also urged that considering this legal position, learned Chief Judicial Magistrate passed the order dated 12/08/2003. It is also urged that the order passed on 12/08/2003 by learned Chief Judicial Magistrate was not challenged by respondent herein till the order was reviewed by the learned J.M.F.C. Ahmednagar vide the impugned order dated 08/07/2004. Considering the legal preposition as enumerated u/s. 219 of The Cr.P.C., it is urged that the order dated 12/08/2003 be restored and order dated 08/07/2004 be quashed and set aside. It is also informed across the bar that so far as the evidence before the Trial Court is concerned, which was recorded in STC No.2497/2002, it was recorded before the order dated 12/08/2003 was passed by the learned Chief Judicial Magistrate. Considering the aspect that the said order was not challenged by the respondent/complainant at the proper time and as rightly observed by the learned Chief Judicial Magistrate while passing the order that all those applications were moved by the accused no prejudice is going to cause them, then in view of provisions u/s. 219(1) of The Cr.P.C., the application moved by the applicant before this Court u/s. 482 of The Cr.P.C. be allowed. In the substance, application allowed. Impugned order dated 08/07/2004 is hereby quashed and set aside and the order dated 12/08/2003 passed by the learned Chief Judicial Magistrate, Ahmednagar is hereby restored. Learned 6 Cri.Appl.No.1726 of 2004 J.M.F.C., on whose file STC No.2463/2002, 2497/2002 and 2498/2002 are pending, to proceed with trials in accordance with Law, after recalling the complainant and the witnesses already examined on the request of the complainant/respondent, and then to dispose of the trials as expeditiously as possible. 6. Rule is thus made absolute as indicated above. No order as to costs. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/MAR. 2011/cri.appl.1726-04