K. Govindaraj Petitioner v. Aswhin Barai

1. This is a petition filed by the petitioner/accused under Sections 482 and 483, Cr.P.C to set aside the order dated 28.3.1995 made in Crl. Revision Petition No. 15 of 1994 on the file of Principal Sessions Judge at Pondicherry with reference to C.C No. 230 of 1992 on the file of Judicial Magistrate, Pondicherry.

2. The material allegations in the petition are as follows:- The respondent had preferred a complaint against the petitioner for an offence under Section 138 of the Negotiable Instruments Act, before the Judicial Magistrate, Pondicherry in C.C No. 230 of 1992 and the learned Magistrate had framed charges against the petitioner. The petitioner aggrieved by that had preferred a Criminal Revision Petition No. 15 of 1994 before the Principal Sessions Judge, Pondicherry under Section 397(1) Cr.P.C to revise the charges framed by the Judicial I Class Magistrate, Pondicherry and also to discharge the accused from the case in C.C No. 230 of 1992 on the file of the judicial I class Magistrate, Pondicherry. The Judicial I Class Magistrate, Pondicherry had violated Section 219, Cr.P.C in as much as the learned Magistrate had taken cognizance of offences pertaining to the dishonour of six cheques in one single complaint filed in the case referred supra. The same is not only contrary to law but also it is illegal. The learned Principal Sessions Judge, Pondicherry while disposing the Criminal Revision Petition No. 15 of 1994 dated 28.3.1995 in his order had dismissed the revision petition filed by the petitioner and also held that the Judicial Magistrate I Class, Pondicherry did not violate Section 219, Cr.P.C

3. On hearing the learned counsel for both sides, the point that arises for determination In this petition is as to whether the petitioner is entitled to the relief prayed for in this petition under Section s 482 and 483, Cr.P.C

4. Point:- The learned counsel for the petitioner seriously contended that the respondent has filed a complaint before the trial Magistrate on the basis of six dishonoured cheques, and that cannot be done because the dishonour of each cheque will give a separate cause of action for filing a complaint under Section 138 of Negotiable Instruments Act and in all the three dishonored cheques can be brought into the penal action under section 138 of Negotiable Instrument Act, and this is made clear in the provision of Section 219, Cr.P.C and in those circumstances, the order passed by the Principal Sessions Judge, Pondicherry in Crl. Revision Petition No. 15 of 1994 dated 28.3.1995 must be set aside.

5. The above contention of the learned counsel for the petitioner are untenable for the following reasons. The respondent filed a private complaint against the petitioner for an offence under Section 138 of Negotiable Instruments Act on the basis of six dishonoured cheques. Section 219(1), Cr.P.C states 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 present case a reading of the complaint by the respondent before the lower Court filed along with the typed-set of papers in this petition, revealed that six dishonored cheques were given to the respondent in the months of September, October and November, 1991 on various dates, i.e, within a period of twelve months. However in the complaint the respondent/complainant would state that the accused required him to present all these six cheques together on 24.1.1992 and the complainant accordingly presented all the cheques together and they have been returned on the same date i.e on 28.1.1992 with an endorsement ‘Payment Stopped’. Therefore each cheque will not give a separate cause of action in view of the request made by the petitioner/accused herein to present all the cheques on a particular date which was done by the respondent/complainant in this case and so Section 219(1), Cr.P.C is not attracted to the facts of the present case for the simple reason that the petitioner/accused in this case advised or instructed the respondent/complainant to present all the cheques together on a single day i.e on 24.1.1992 and all the cheques were together simultaneously presented and all the cheques were returned on 28.1.1992 simultaneously with an endorsement ‘payment stopped’ and therefore, the offence alleged to have been committed was in respect of single transaction and not in respect of different transactions.

6. Even otherwise Section 220 (1) of Cr.P.C states that if 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. In the present case though the giving of six cheques by the petitioner/accused to the respondent/complainant may be on different dates but all those acts of giving these cheques were merged together to form the same transaction viz., the presentation of these cheques together on one particular day as requested by the petitioner/accused herein. In other words even though different cheques were given on different dates, the presentation of all these cheques formed the same transaction on the instruction of the petitioner/accused herein given to the respondent/complainant. Further the demand was also made by the respondent/complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands made by the respondent/complainant for the payment of the dishonored cheques. In those circumstances, I am of the view that the petitioner/accused herein may be charged and tried at one trial for several such offence because the series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonoring the cheques on a single day on the presentation of the same as requested by the petitioner/accused herein.

7. Even ignoring this aspect, section 397(3) of Cr.P.C will come into play with reference to the facts and circumstances of this case. It is not in dispute that the petitioner/accused preferred a Revision petition before the Principle Sessions Judge, Pondicherry to revise the charges framed by the Judicial Magistrate, Pondicherry and discharge the accused in the case in C.C No. 230 of 1992 and the same was dismissed by the Principal Sessions Judge, Pondicherry on 28.3.1995 in Cr.R.P No. 15 of 1994. Section 397(3) states that if an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. In other words when the earlier revision petition under Section 397 (1) was filed, there cannot be a second revision petition by the same accused, and this provision of law cannot be circumvented by invoking the inherent jurisdiction of the High Court under Section 482 of Cr.P.C This view gains support from the decision of the Supreme Court in Deepti v. Akhil Rai, (1995) 5 SCC 751 wherein at page 752 and at the end of para 4 it was held as follows:-

“It High Court should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court if not maintainable and that the inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the code.”

Therefore the petitioner/accused herein is specifically barred under section 397(3) of Cr.P.C for maintaining this application under Section 482 of Cr.P.C to invoke the inherent power of the High Court to set aside the order dated 28.3.1995 in Crl. Revision Case No. 15 of 1994 and consequently to revise the charges framed by the Judicial Magistrate, Pondicherry and to discharge the accused from the case in C.C No. 230 of 1992.

8. Even brushing aside this aspect as covered under Section 397(3), Cr.P.C the petitioner/accused herein has come forward with an application under Section 482 of Cr.P.C before the High Court at an earlier point of time in Crl.O.P No. 16274 of 1992 and the same has been suppressed by the petitioner herein and so the petitioner herein is not entitled for any relief under Section 482 of Cr.P.C A perusal of the copy of the order passed in Crl.O.P No. 16274 of 1992 filed by the petitioner/accused herein before this court filed along with the typed set of papers by the respondent-complainant would reveal that the petitioner-accused herein made an attempt earlier to call for the records in C.C No. 230 of 1992 on the file of Judicial Magistrate, Pondicherry and quash the same, and Justice Pratap Singh, J. on considering the allegations made in the complaint and on considering the contentions raised before him, came to the conclusi on that the complaint cannot be quashed at the threshold and consequently dismissed the Crl.O.P filed under Section 428, Cr.P.C So, this present petition under Section 482, Cr.P.C is the second attempt made by the petitioner/accused herein, and at no stretch of imagination he can seek the remedy from this court under Section 482 Cr.P.C once again.

9. Considering the above facts and circumstances of the case, I am to hold that the petitioner-accused is not entitled to the relief prayed for in this petition under Section 482 and 483, Cr.P.C and so this petition has to be dismissed, and consequently, I answer this point as against the petitioner.

10. In the result the petition is dismissed. Consequently the Stay Petition in Crl.M.P No. 2100 of 1995 is dismissed and the interim stay is vacated.