1 IN THE HIGH COURT OF JUDICTURE FOR RAJASTHAN AT JODHPUR. O R D E R Manjeet. Versus State of Rajasthan & Anr. S.B. Criminal Revision Petition No.623/2007 and Manjeet. Versus State of Rajasthan & Anr. S.B. Criminal Revision Petition No.624/2007 ... Date of Order: August 03, 2007 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr. H.K. Jain, for the petitioner(s). Mr. V.R. Mehta, Public Prosecutor for the State. Mr. D.L. Rawla, for the respondent No.2. BY THE COURT: Both these revision petitions under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) are directed against the order dated 18-6-2007 passed by the Additional Chief Judicial Magistrate, Sri Ganganagar (for short, “the trial Court” 2 hereinafter) and involve the common questions of law and are between the same parties, therefore, with the consent of the learned counsel for the parties, they are being heard and decided. The facts and circumstances giving rise to these petitions are that complainant-respondent No.2 filed two separate complaints under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act, 1881” hereinafter) against the petitioner before the trial Court on the ground that two different cheques issued by the petitioner in favour of the respondent No.2, on being present to the bank, were returned unpaid and have been dishonoured on account of “insufficient fund” to the account of the petitioner. Thereafter a notice demanding the cheques amounts within 15 days from the date of receipt of the notice was sent by the complainant-respondent No.2, but despite the notice, the petitioner failed to pay the cheques amount within the statutory period and thereafter two separate complaints under Section 138 of the Act of 1881 were filed within the period of limitation. Before the trial Court, the petitioner filed an application under Section 219 of the Code requesting the trial Court that the petitioner may be charged together in both the criminal complaint cases. That application came to be dismissed by the trial Court by the impugned order. Hence these criminal revision petitions. 3 I have heard learned counsel for the parties. Carefully gone through the impugned order. Section 219 of the Code reads as under:- “219. Three offences of same kind within year may be charged together.- (1) When a person is accused of more offence than one of the same kind committed within the space of twelve months from the first to the last of such offence, 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 within the same amount of punishment under the same section of the Indian Penal Code (45 of 1860), or of any special or local law: Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.” Learned counsel for the petitioner has relied on a decision of this Court in Satish Singhal & Anr. Vs. State of Rajasthan & Anr., S.B. Criminal Revision Petition No.510/2005 etc. decided on 25-7-2005, wherein, on similar facts, this Court directed that the trial Court shall proceed to hold the trial together against the accused therein and they be charged together in view of the provisions of Section 219 of the Code. In those cases, there were three cases of the same nature between 4 the same parties relating to the offence under Section 138 of the Act of 1881 based on dishonour of the cheques issued by the accused therein in favour of the complainant therein. In all the three cases, the cause of action arose at the same place and between the same parties and all the three cheques in question were dishonoured in the year 1998 of the same year. This Court noticed that all the three offences were committed within the space of one year and are of the same kind and between the same parties, therefore, the petitioners therein can be jointly tried for the said offences. Learned counsel for the respondent has relied on the decisions of the Kerala High Court in Sidhardhan Vs. Prasannan & ors., 2006 Cri.L.J. 2568 (Kerala) and a decision of the Bombay High Court in Rajendra B. Choudhari Vs. State of Maharashtra & Anr., 2007 Cri.L.J. 844 (Bom.). In Sidhardhan Vs. Prasannan & ors. (supra), the Kerala High Court held that the petitioner was prosecuted for two different offences of dishonour of the cheques; two different complaints have been filed against the same person in respect of the same offence but committed under different circumstances. Since complainants and their witnesses have to be examined in both cases and documents in two cases have to be marked separately and for all practical purposes, merit of two cases has to be evaluated separately, thus two complaints cannot be tried at one trial. 5 Similarly, in Rajendra B. Choudhari Vs. State of Maharashtra & Anr. (supra), the Bombay High Court held that dishonour of each cheque constitutes separate offence giving rise to separate cause of action subject to condition that separate notices are issued in respect of each cheque, the transactions cannot be held to be a single transaction attracting the provisions of Section of the Code and separate trial is permissible. Section 219 of the Code, in clear terms provides that when a person is accused of more offence 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. In the instant case, there are two cases. The offences have been committed by the same accused and the case is between the same accused and the same complainant and the commission of the offence was within the space of twelve months from the first to last and, therefore, there is clear mandate of Section 219 of the Code to charge the accused- petitioner together and try for such offences not exceeding three. 6 In view of the provisions of Section 219 of the Code and the decisions of this Court, referred hereinabove, in my view, the trial Court fell in error in declining to charge the petitioner together in the aforesaid two cases and, therefore, the impugned orders cannot be sustained and liable to be set aside. In the result, the criminal revision petitions are allowed; the impugned orders are set aside and the trial Court is directed to charge the petitioner together for both the cases as envisaged under Section 219 of the Code. (H.R. PANWAR), J. mcs