PRADEEP KUMAR K. v. STATE OF KERALA (through Public Prosecutor) and BIJU R.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944** **CRL.MC NO. 6431 OF 2022** **ST 50/2020 OF JMFC, KALAMASSERY (TEMPORARY)** ## **PETITIONER/S:** PRADEEP KUMAR K. AGED 63 YEARS KUNNUPARAMBIL HOUSE, PERUNNA P.O. PERUNNA VILLAGE, CHANGANASSERY, KOTTAYAM, PIN - 686102 BY ADV P.B.AJOY ## **RESPONDENT/S:** 1 STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 BIJU R.S. AGED 56 YEARS 1/46A (39/46A) 5D, ASSET ENCLIVE, A.P. MARAKKAR ROAD, NEAR RAILWAY UNDER PASS, KOONAMTHAI, EDAPPALLY P.O., ERNAKULAM, PIN - 682024 BY ADVS. UNNIRAJA T.I. S.G.SREEKANTH(K/755/2011) S.BADUSHA(K/673/2010) SREEJITH S.(K/002264/2019) JOEL ANTONY GEORGE(K/742/2020) FAHEEM AHSAN.S(K/001986/2019) ## **OTHER PRESENT:** PP M.C.ASHI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.03.2023, THE COURT ON 07.03.2023, ALONG WITH Crl.MC.6463/2022 PASSED THE FOLLOWING: Crl.M.C Nos.6431 and 6463 of 2022 -2- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 CRL.MC NO. 6463 OF 2022** **ST 1901/2018 OF JMFC, KALAMASSERY (TEMPORARY)** **PETITIONER/S:** PRADEEP KUMAR K. AGED 63 YEARS KUNNUPARAMBIL HOUSE, PERUNNA P.O. PERUNNA VILLAGE, CHANGANASSERY, KOTTAYAM, PIN - 686102 BY ADVS. P.B.AJOY S.SREEKUMAR (ADUKKATH) 1 STATE OF KERALA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 BIJU R.S. AGED 56 YEARS 1/46A (39/46A) 5D, ASSET ENCLIVE, A.P. MARAKKAR ROAD, NEAR RAILWAY UNDER PASS, KOONAMTHAI, EDAPPALLY P.O., ERNAKULAM, PIN - 682024 BY ADVS. UNNIRAJA T.I. S.G.SREEKANTH(K/755/2011) S.BADUSHA(K/673/2010) SREEJITH S.(K/002264/2019) JOEL ANTONY GEORGE(K/742/2020) FAHEEM AHSAN.S(K/001986/2019) ## **RESPONDENT/S:** ## **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **06.03.2023, THE COURT ON 07.03.2023, ALONG WITH Crl.MC.6463/2022 PASSED THE FOLLOWING:** Crl.M.C Nos.6431 and 6463 of 2022 -3- ## **ORDER** Dated this the 07[th] day of March, 2023 The petitioner is the accused in S.T.Nos.1901 of 2018 and 50 of 2020 pending before the JFMC – Kalamassery (Temporary). The cases originated from complaints filed by the second respondent alleging commission of the offence under Section 138 of the N.I.Act. In both cases, petitions seeking joint trial were filed and by separate orders dated 30.06.2022, the petitions were dismissed. Hence, these Crl.M.Cs. 2. Learned Counsel for the petitioner contended that even though separate cheques are issued and dishonoured on different dates, the transaction, based on which the cheque were issued, is the same. Hence, the prayer for joint trial ought to have been allowed. In support of the contention, reference is made to Sections 218 to 220 of Cr.P.C. Attention is drawn to the table Crl.M.C Nos.6431 and 6463 of 2022 -4- of dates and events in paragraph 5 of the Crl.M.C in an attempt to point out the similarities. It is contended that, instead of clinging on to technicalities, the trial court ought to have allowed the petitions in the interest of justice. 3. Learned Counsel for the second respondent submitted that the oblique motive behind the filing of the unmerited petitions for joint trial is protraction of the proceedings. It is submitted that the transactions which led to the filing of complaints under Section 138 are distinct, even though the parties are the same. One case is with respect to the cheque issued in discharge of a hand loan availed by the petitioner, while the other is with respect to the cheque issued towards refusal of the amount advanced to the petitioner on his promise to let out his building to the respondent. As such, Sections 218 to 220 have no application. 4. I find substantial merit in the Crl.M.C Nos.6431 and 6463 of 2022 -5- contentions put forth by the Counsel for the second respondent. Admittedly, the cheques were issued towards discharge of distinct liabilities. The cheques were issued, presented and dishonoured on different dates. The statutory notices were also issued on different dates. The cause of action for filing the complaints, viz; default of the drawer in effecting payment within the stipulated time, after receipt of the statutory notice issued under proviso (b) of Section 138 of the Act, is also different. The question whether, under such circumstances, joint trial court be ordered by invoking Section 219 and 220 was considered by the Bombay High Court in _**Rajendra B. Choudhari v. State of Maharashtra**_ _**and another [2007 KHC 6155],**_ the relevant portion of which is extracted hereunder; _“3. First contention of learned Counsel for the petitioner is that the Trial Judge committed an error in not combining all_ Crl.M.C Nos.6431 and 6463 of 2022 -6- _the causes of action for holding a single trial. It is not possible for us to accept this contention for a simple reason that a cause of action for the prosecution in respect of dishonour of a cheque arises only if the drawer commits default in making payment within stipulated period, after receipt of the notice required to be given in conformity with proviso (b) of Section 138 of the Act, in respect of each tender and the non-payment of the drawee bank on the ground that the balance amount in the account of the drawer is insufficient to Honour his commitment or it exceeds the amount arranged to be paid from that account by an agreement with the drawee bank. Each tender of a cheque and its dishonour gives rise to separate cause of action subject to a condition that separate notices are issued in respect of each of these cheques. The payee is not prevented from combining the causes of action by covering all the instances in a single notice. In such a case all the transactions covered by the notice would be regarded as a single transaction, permitting a single trial. However, in a case where cheques were issued on different dates, presented on different_ Crl.M.C Nos.6431 and 6463 of 2022 -7- _dates and separate notices are issued in respect of each default, the transactions cannot be held to be a single transaction attracting provision of Section 219 of the Code. In support of his contention, learned Counsel has placed reliance on the judgment of this Court reported in 2001 All MR (Cri) 630 in the matter of Rajasthan Trading Company v. Chemos International Ltd. In that case, in all 27 cheques were issued on different dates but only one notice was issued by the payee. In this view of the matter it was held that single trial in respect of the 27 cheques is permissible. However, it has been categorically observed by the Court that dishonour of each cheque constitutes separate offence which should ordinarily be tried by different trials. Apart from this, it is pertinent to bear in mind that Section 219 is an enabling provision and does not mandate a single trial. In appropriate case the Court is at liberty to try the offences of the same kind in different trial. While dealing with a similar situation in the matter of Ranchhod Lal v. State of M.P. , their Lordships of the Apex Court observed in paras 15 and 16 of the report thus:_ Crl.M.C Nos.6431 and 6463 of 2022 -8- _15. Learned Counsel for the appellant also relied on Section 234, Cr. P.C. and urged that three offences of criminal breach of trust could have been tried at one trial as Section 234 provides that 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. This again, is an enabling provision and is an exception, to Section 233, Cr. P.C. If each of the several offences is tried separately, there is nothing illegal about it._ _16. Lastly, reference was made, on behalf of the appellant to Section 235, Cr. P.C., and it was urged that all these offences were committed in the course of the same transaction, and, therefore, they should have been tried at one trial. Assuming, without deciding, that these offences could be said to have been committed in the course of the same transaction, the separate trial of the appellant for certain specific offences is_ ## Crl.M.C Nos.6431 and 6463 of 2022 -9- _not illegal. This section too is an enabling section._ _In this view of the matter, we cannot sustain contention of learned Counsel for the petitioner that by holding separate trials the trial Court has committed an illegality.”_ It is also doubtful whether Sections 218 to 220 of Cr.P.C would apply to complaints under Section 138 of the N.I Act, since the procedure prescribed is that of summons trials. Even accepting that the provisions would apply, it is not obligatory for the court to order joint trial, since Section 220 is only an enabling provision. The law on the point is settled in _**Essar Teleholdings Ltd v. Central Bureau of**_ _**Investigation [(2015) 10 SCC 562],**_ wherein the Apex Court held that it is not obligatory for the court to hold joint trial, Section 220 being only an enabling provision. The conclusion to be drawn from the above discussion is that it is for the court concerned Crl.M.C Nos.6431 and 6463 of 2022 -10- to decide whether or not to order joint trial. In the case at hand, such discretion having been correctly exercised by the learned Magistrate, the impugned order warrants no interference. In the result, the Crl.M.Cs are dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ Crl.M.C Nos.6431 and 6463 of 2022 -11- ## **APPENDIX OF CRL.MC 6463/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE COMPLAINT DATED 31/07/2018 IN ST NO. 1901/2018 ON THE FILE OF JUDICIAL MAGISTRATE COURT OF FIRST CLASS, KALAMASSERY Annexure A2 TRUE COPY OF THE COMPLAINT DATED 01/02/2019 IN ST NO. 50/2020 ON THE FILE OF JUDICIAL MAGISTRATE COURT OF FIRST CLASS, KALAMASSERY Annexure A3 CERTIFIED COPY OF THE ORDER DATED 30/06/2022 IN CMP. NO. 766/2022 IN ST NO. 1901/2018 ON THE FILE OF JUDICIAL MAGISTRATE COURT OF FIRST CLASS, KALAMASSERY Crl.M.C Nos.6431 and 6463 of 2022 -12- ## **APPENDIX OF CRL.MC 6431/2022** ## PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF THE COMPLAINT DATED| |---|---| ||01/02/2019 IN ST NO. 50/2020 ON THE| ||FILE OF JUDICIAL MAGISTRATE COURT OF| ||FIRST CLASS, KALAMASSERY| |Annexure A2|TRUE COPY OF THE COMPLAINT DATED| ||31/07/2018 IN ST NO. 1901/2018 ON THE| ||FILE OF JUDICIAL MAGISTRATE COURT OF| ||FIRST CLASS, KALAMASSERY| |Annexure A3|CERTIFIED COPY OF THE ORDER DATED| ||30/06/2022 IN CMP. NO. 1118/2022 IN ST| ||NO. 50/2020 ON THE FILE OF JUDICIAL| ||MAGISTRATE COURT OF FIRST CLASS,| ||KALAMASSERY|