CRL.M.C. No.3030/2007 Page 1 14 *IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 3030/2007 % Date of decision : 07th May, 2010. MORGAN TECTRONICS LTD. & ORS. ..... Petitioners Through Mr. Rakesh Mukhija, advocate. versus STATE & ORS. ..... Respondents Through Mr. P.K. Sharma, advocate for R. 2-5. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R 1. The petitioners are facing prosecution/trial under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as Act, for short) in six different complaints filed by M/s. Super Enterprises, M/s. Shubham Traders, M/s. Decent Electronics and M/s. Trading Systems. The four complainants are partnership firms. M/s. Super Enterprises and M/s. Shubham Traders have filed two complaints each through their partner-Mr. D.P. Gupta. M/s. Decent Electronics and M/s. Trading Systems have filed one complaint each through their partners Mr.Parveen Gupta and Mr. Anuj Gupta, respectively. 2. The petitioners herein had filed an application before the Trial Court with the following prayers :- “PRAYER: It is therefore most respectfully prayed that on the grounds pleaded herein before this Hon`ble Court may be pleased to CRL.M.C. No.3030/2007 Page 2 a. to try all the six cases pending before this Hon’ble Court between the parties arising out of the same transaction jointly. b. any other relief, which this Hon`ble Court may deem fit and proper in the circumstances of the case, may also be granted in favor of the petitioner.” 3. This application has been dismissed by the learned Trial Court vide Order dated 30th July, 2007, recording that the six different complaints deal with six different cheques which constitute a different cause of action. It was recorded that the complainants are different and were not filed by the same person and therefore joint trial cannot be ordered. Learned Trial Court recorded that the application filed was under Sections 219/220 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code, for short). It was also noticed that this was a second application filed by the petitioners praying for the same relief. The learned Trial Court, further recorded that in only one of the cases proceedings had been stayed by the High Court and there was no stay order in other cases. 4. Learned counsel for the petitioners submitted that in view of Section 219 of the Code, the six complaints should be tried jointly as the accused i.e., the petitioners are same and the offence under Section 138 of the Act was committed within a span of 12 months from the date of the alleged first offence. He has submitted that for Section 219 it is immaterial that the complaints are by four different partnership firms. Learned counsel for the respondent/complainants on the other hand submitted that Sections 218 to 223 of the Code are not applicable as Chapter XVII, Part B relating to “joinder of charges” applies only to warrant cases and a “charge” is not framed under Chapter XX, which is applicable to summons cases. It is stated that notice under Section 251 of the Code is issued in summons cases. 5. Sections 218,219 and 220 of the Code which read as under:- CRL.M.C. No.3030/2007 Page 3 “S. 218 (1) for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223. S. 219. (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 section of the Indian Penal Code (45 of 1860), or of any special or local laws: 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. S. 220. (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of Section 212 or in sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. (3) If the acts alleged constitute an offence falling within two CRL.M.C. No.3030/2007 Page 4 or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860).” 6. Section 218 of the Code incorporates the general rule and stipulates that each offence of which a person is accused of, there should be a separate charge and each charge should be tried separately. The intention and purpose behind the section is to ensure that the accused is given a fair opportunity to defend and meet the charge leveled against him and to have notice of the charge, which he has to meet. This rule incorporated in Section 218 has to be read harmoniously with Sections 219 to 223 of the Code, which deals with “joinder of charges”. Section 219 of the Code permits one trial in respect of upto three offences of the same kind committed within a span of 12 months from the date of first offence. Section 219 of the Code is merely an enabling provision. It is not mandatory but permissive. Thus, the complaints cannot be dismissed or rejected on the ground that a joint complaint or trial was possible but separate complaints have been filed. To this extent, the argument of the petitioners to the contrary is rejected. 7. The contention of the counsel for the respondent/complainant that the principles underlined in Section 218 or 219 cannot be applied to a summons trial, has to be rejected in view of Gulshan Kumar Ahuja Vs. Veena Sharma and Others 2003(107)DLT725, wherein it has been CRL.M.C. No.3030/2007 Page 5 observed:- “ 4. The main contention of learned Counsel for the petitioner is that Section 219 of the Cr. P.C. which deals with joint trial of two offences of the same kind within the span of one year, does not apply to summon trials. There is no dispute with this proposition of law. Section 219, Cr.P.C. deals with joinder of charges in warrant trials, not summons cases as laid down in the case of Municipal Committee, Barnala V. Ram Lubhaya Kakar 1982 (2) CLR 690. But there is no prohibition in the Code or in the Negotiable Instruments Act against the joint trial of two similar offences under Section 138 of the Act. Rather on the parity of reasoning, there appears to be no reason why joint trial of similar offences cannot be ordered in summons cases. In the case of K.Gobindarraj V. Ashwin Barai, 1(1999) CCR 294 = 1998 CRLJ 22, Madras High Court has held that accused may be tried at one trial if different cheques issued in one year were dishonoured on the same date. In the present case, two cheques were issued within a span of one year and were presented for encashment and were dishonoured on the same date. Parties are common and evidence in the two complaint cases will also be common. Under these circumstances, I think the impugned order does not suffer from any illegal infirmity. Moreover the impugned order does not have the effect of finally deciding any issue involved in the case nor it brings any proceedings to culmination. It is purely interlocutory in nature. Therefore, in view of Section 397(2), Cr. P.C. this revision is not maintainable. In the result, this petition fails and is hereby dismissed.” 8. There is nothing in the Code or Act and in particular Section 138 thereof which precludes the procedure envisaged under Sections 218, 219 or 220 to 223 being adopted or applied in a summons case under Chapter XX. The reasoning given in Gulshan Kumar Ahuja(Supra) is equally applicable and can be applied to Section 218 to 223 and Section 251 of the Code in a summons trial. 9. Learned counsel for the petitioners relies upon proviso to Section 218 of the Code. The proviso to Section 218 requires two conditions to be satisfied. CRL.M.C. No.3030/2007 Page 6 Firstly, the accused persons must make an application in writing and secondly, the Magistrate should be satisfied that such person is not likely to be prejudiced in case all or some charges are tried together against the said accused. It is also necessary that a complaint should be pending before the same Magistrate and under the proviso to Section 218(1) of the Code, a complaint pending before another Magistrate cannot be transferred. (See, judgment of the Supreme Court in State of Punjab and another versus Rajesh Syal AIR 2002 SC 3687) 10. I have examined the application filed by the petitioner. The said application can be treated as one under the proviso to Section 218(1) of the Code. Therefore, the first condition of the proviso is satisfied in the present case. In para 8-11 of the application filed by the petitioners, it is stated that the petitioners would like to have a joint trial as evidence which is to be recorded is similar and it would save time. The petitioners have further stated that they would be producing same witnesses and their defence is same. In para 2 of the application it is pointed out that in the six complaints similar allegations have been made that the petitioners had projected themselves as reputed importers and had enticed the four complainants for supply of imported colour picture tubes from Seoul (South Korea) and accordingly payments were made to the petitioners who had in turn issued post dated cheques to repay the amounts which on presentation had bounced. My attention in this regard is also drawn to the addresses of the three complainants, namely, M/s. Super Enterprises, M/s. Shubham Traders and M/s. Trading System, which is same i.e. MOD Apartments, Plot no. 61, Vasundhara Enclave, Delhi-110096. Address of M/s. Decent Electronics is D-19, Anand Vihar, Delhi-110092. CRL.M.C. No.3030/2007 Page 7 11. In view of the aforesaid position, the impugned Order dated 30th July, 2007, dismissing the application of the petitioners is partly modified and it is directed that the trial in the two complaints filed by M/s. Super Enterprises can be joint and the two complaints filed by M/s. Shubham Traders can be joint. However, as the complainants in two other complaints are separate partnership firms, namely, M/s. Decent Electronics and M/s. Trading Systems and are represented by different complainants, namely, Mr.Parveen Gupta and Mr. Anuj Gupta, the trial in these two cases should not be joint. The cheques in all cases are separate. The evidence required to lead is separate and even cross examination may be different. A joint trial in all cases can result in possible confusion and can cause prejudice. It is noticed that the dates of hearing in all these cases have been given on the same date to avoid inconvenience to the parties. Learned Trial Court will try and fix the cases on the same date and if possible, evidence may be recorded on the same date if calendar and time permits. Petition is partly allowed and is accordingly disposed of. SANJIV KHANNA, J. MAY 07, 2010 P