Allahabad High Court

Azimuddin vs State Of U.P. And Another on 17 September, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:166488
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
APPLICATION U/S 482 No. - 52 of 2025 (Leading Application)
 
   
 
   Azimuddin    
 
  .....Applicant(s)   
 
 Versus  
 
   State of U.P. and Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Ahmad Saeed, M. Asif   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A., Nandini Pandey, Satya Prakash   
 
     
 
  
 
with 
 
 
 
APPLICATION U/S 482 No. - 44829 of 2024 (Connected C1 Application)
 
   
 
   Azimuddin    
 
  .....Applicant(s)   
 
 Versus  
 
   State of U.P. and Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Ahmad Saeed, M. Asif   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A., Nandini Pandey, Satya Prakash   
 
     
 

 
 
 
with 
 
  
 
APPLICATION U/S 482 No. - 44861 of 2024 (Connected C2 Application)
 
   
 
   Azimuddin    
 
  .....Applicant(s)   
 
 Versus  
 
   State of U.P. and Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Ahmad Saeed, M. Asif   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A., Nandini Pandey, Satya Prakash   
 
     
 

 
 
 
  
 
Court No. - 75
 
    
 
 HON'BLE VIKAS BUDHWAR, J.

1. Heard Shri Mohd. Asif, learned counsel for the applicant in the leading application and connected C1 & C2 applications and Sri S.P. Singh, learned State Law Officer for the State as well as Ms. Nandini Pandey, counsel for opposite party no. 2.

2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.

3. The facts of the leading application as well as connected C1 & C2 applications are that a complaint stood lodged by the opposite party no. 2 on 19.06.2020 being Complaint Case No. 3474 of 2020 with an allegation that the opposite party no. 2 is a proprietor of Saurabh Traders Bamroi, Police Station Bilsanda, District Pilibhit which is engaged in inter-locking and the applicant herein trades in Reta and Bajri whose supply in whole-sale the said items to the opposite party no. 2. Allegation is that the applicant herein had asked for financial assistance of amount of Rs. 18,95,000/-, the same was advanced on the assurance given by the applicant that it will be refunded within two months. However, the applicant after several persuasions proceeded to draw six cheques bearing No. 000059 of Rs. 2,00,000/-, 000018 of Rs. 6,00,000/-, 000045 of Rs. 5,00,000/-, 000055 of Rs. 2,00,000/-, 000060 of Rs. 3,00,000/- and 000076 of Rs. 95,000/- and with respect to the present complaint being Complaint Case No. 3474 of 2020, the cheque bearing no. 000045 of Rs. 5,00,000/- came to be drawn which on presentation in the bank came to be dishonoured on 21.01.2020 followed by a statutory demand notice dated 15.02.2020 and a complaint under Section 138 of the Act on 19.06.2020 thereafter on 23.03.2021, the applicant came to be summoned under Section 138 of the Act.

3. An application came to be preferred by the applicant for consolidating the said complaint case alongwith the Complaint Case No. 3481 of 2020 which related to the same kind, particularly, with respect to the discharge of the liability of total liability of Rs. 18,95,000/-, the cheque bearing no. 000076 of Rs. 95,000/- came to be drawn which was dishonoured on 21.01.2020, followed by a statutory demand notice dated 18.02.2020 and the complaint on 19.06.2020 and the summoning order dated 23.03.2021 though complaint in connected C1 and also with the Complaint Case No. 3478 of 2020, wherein the total liability of Rs. 18,95,000/- with discharge of the part liability a cheque No. 000018 of Rs. 6,00,000/- came to be drawn which was dishonoured on 21.01.2020 followed by a statutory demand notice dated 18.02.2020 and the complaint dated 19.06.2020 and the summoning order came to be passed on 23.03.2021, the said application on contest came to be rejected by virtue of the order dated 18.09.2024.

4. Questioning the said order, the applicant has been filed the present application.

5. Learned counsel for the applicant has submitted that the court below has committed a serious error in rejecting the said request for consolidating the said case, particularly, in view of the fact that there happens to be a specific provisions in the Cr.P.C. being Section 219/220 Cr.P.C. wherein Section 219 Cr.P.C. itself provides that the three offences of the same kind within year may be charged together. Submission is that here the same relates to the same kind of the offences, particularly, with respect to discharge of the liability of Rs. 18,95,000/- in total six cheques were drawn and, however, so far as the present case is concerned in the leading application with respect to part discharge of liability as a part payment amount of Rs. 5,00,000/- followed by in connected C1 of Rs. 95,000/- and connected C2 of Rs. 6,00,000/- came to be paid by the cheque which was dishonoured on the same date 21.01.2020 and the statutory demand notice came to be issued and the complaint was filed on the same date.

6. Submission is that the court below has wrongly applied the case in Vani Agro Enterprises v. State of Gujarat & Ors.; 2021 (16) SCC 132 and Smt. Sumedha Sunil Chitpur v. State of Maharastra, AIR 2012 (NOC) 9 (Bom), as the issue stands covered and decided by a constitutional Bench judgment of the Hon'ble Apex Court in the matter of Section 138 of the N.I. Act, In Re Expeditious Disposal of Cases under Section 138 of the N.I. Act, 1881; 2021 (16) SCC 116. However, he submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

7. Sri S.P. Singh, learned State Law Officer for the State as well as Ms. Nandini Pandey, counsel for opposite party no. 2 could not dispute the said legal proposition that their disputes were of same kind which were within the space of 12 months from the first to the last of the offences and, according to them, the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

8. I have heard learned counsel for the parties and gone through the records carefully.

9. Apparently, in the leading and connected C1 & C2 applications, three complaints stood lodged on 19.06.2020 with respect to drawing of three cheques of Rs. 5,00,000/- in leading, Rs. 95,000/- in the connected C1 and Rs. 6,00,000/- in the connected C2 application with respect to discharge of the liability while making part payment of the total liability of Rs. 18,95,000/- which were dishonoured on 21.01.2020 followed by statutory demand notice in the leading application on 15.02.2020, connected C1 on 18.02.2020 and connected C2 on 18.02.2020 and the complaint on 19.06.2020, summoning orders came to be passed on 23.03.2021 and an application for consolidation of the said cases came to be preferred which on contest came to be rejected on 18.09.2024.

10. For ready reference, the order passed in the leading application in complaint case no. 3474 of 2020 which is identical in connected C1 and connected C2 applications is being quoted hereinunder:

"??????-18.09.2024

???????? ??? ???? ??????? ??? ???????? ?? ??????? ???????? ???????? ???????? ?? ?????? ????? ??????? ???????? ????????????? ???? ??. 9-? ?? ??? ?? ????. ???? ???????? ???? ??? ?? ?? ??? ??????? ?? ?????? ???? ???? ??????????? ???? ???????? ?? ???????? ?? ??????? ???? 138 ?????????? ?? ???? ??? ???? ???? ?? ?? ??? ??? 3478/2020 ? 3475/2020 ? 3476/2020 ? 3481/2020 ??? 3474/2020 ?? ??????? ?????? ??? ??????? ?? ?? ???????? ??? ????????? ?? ??? ????? ??? ???????? ?????? ?? ???? ?? ???? ????? ?? ???-??? ???????? ???? ?? ?????????? ?????? ??? ? ?????? ???????? ?? ?????? ??? ?????? ???? ?? ???????? ??? ???? ??? ???? ??? ?? ?? ????? ?? ???? ????? ??? ?? ??? ???? ??? ?? ?? ????? ?? ???? ??? ????? ????? ??? ?? ??? ?? ?? ????? ?? ??? ???? ??? ?????? ???? ????? ??? ??, ??????? ??? ??? 3475/2020 ??? ?????? ?? ??????? ???? ??? ???????? ??? ???? ??? ?????? ????? ?? ????? ???? ???? ?????? ??? ??? ???????? ??? ???? ??? ?????? ????? ?? ????? ???? ?? ????? ?? ??? ???

???????? ????. ???? ?? ??????? ??????? ???? ???? ?????? ????? ?????? ???????? ?? ??? ???? ??? ?? ?? ????????? ???? ???????? ???? ?? ?????????? ??????????? ?? ?????? ?? ??????? ?? ???????? ???? ?? ??????? ?? ???????? ???? ??? ??? ??????? ?????? ?? ??? ??? ???????? ?? ????? ???????? ???? ??? ?? ?????? ??? ??? ???-??? ???????? ?????? ???? ??? ?? ?? ??? ??? ?????? ?????? ?? ???-??? ?? ?? ?????? ??? ??? ?????? ?? ?????? ???-??? ??????? ?? ??? ??????? ??? ?????? ??? ???????? ?? ??? ???? ?? ??????? ??? ???????? ?????? ?????? ?? ???????? ???? ?? ???? ?? ??? ??????????? ?????? ??????? ??????? ?? ?? ???? ?? ??? ??????? ?? ?????? ???? ???? ???? ??? ??? ??????? ?????? ???????? ???? ??? ????????? ???? ??? ??? ?? ????????? ????? ??? ???? ??? ??? ??????? ??? ????? ?? ??? ???????? ?? ????? ?????? ?? ??? ?? ??????? ?? ????? ???? ?? ??? ??? ??????? ???? ?? ??????? ?? ?????? ??????? ???? ???? ???????? ?????? ???????? ????????? ???? ?????? ???? ???? ????? ???

???? ? ???????? ?? ?????? ?????

???????? ????. ???? ?? ?????? ?? ???????? ?????? ???? ??? ?????? ????? ?? ????? ???? ?? ????? ?? ??? ??? ?????? ???? ????????, ?????? ?????? ???? ???? ???????? Smt. Sumedha Sunil Chitpur v. State of Maharashtra, AIR 2012 (NOC) 9 (Bom) ??? ?? ??????? ???? ???? ??? ?? ??-Three separate cases filed on the basis of dishonour of three separate cheques, cannot be clubbed together. ??????? ???? ???????? ??? ?????? ???? ???????? ?????? ?????? ?? ?????????? ???? ??? ?? ?? ??? ???? ????? ?? ?????? ?? ???? ?? ??????? ??? ???? ?????? ?? ?? ??? ??????? ???? ???? ?? ???? ??? ?????? ???????? ???????? ?????? ???? ???? ???????? Vani Agro Enterprises v. State of Gujarat & Ors. 2019 (10) SCJ 238 ??? ?? ??????? ???? ???? ??? ?? ?? There is no provision of consolidation of cases in the Code of Criminal Procedure" "The only relief that can be granted to the appellant is that we direct the Trial Magistrate to fix all the four cases on one date so that it is convenient to both the parties to attend the hearing of all the four cases on one date". ??????? ???? ???????? ??? ?????? ???????? ???????? ?????? ?? ?????????? ???? ??? ?? ?? ??? ????????? ?????? ??? ?????? ?? ?????? ?? ??? ???????? ???? ??" "????????? ?? ??????? ???? ?? ?? ?? ???? ?? ?? ???????? ?????? ??? ??? ?????? ?? ?? ?? ????? ?? ?? ?? ?? ???? ?? ???? ????? ?????? ?? ??? ????????? ??? ???? ?? ?? ?? ????????? ?? ?? ??????? ??? ????? ???? ??? ???????? ?????? ???????? ?? ?????? ?? ???????? ?? ?? ???? ???? ?? ?? ??? ???

??? ??????? ????? ?????? ??? ???????????? ??? ??????? ???? ?????????? ?? ???????? ???????? ?????? ???????? ????. ???? ??? ?????? ??? ????? ???? ?? ????? ???? ?? ??? ???? ???? ?? ??? ???????? ????????????? ?????? ???? ???? ????? ???

???? ???????? ????. ???? ???? ??. 9-? ?????? ???? ???? ??? ???????? ?????? ??????? ?????? ?????? 01.10.2024 ?? ??? ???"

11. Importantly, the parties are the same in all the three complaints and the three offences are of the same kind committed within a space of 12 months.

12. Section 219/220 Cr.P.C. reads as under:

"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 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.

Section 220. Trial for more than one offence.-

(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 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)."

13. In the said issue, the issue regarding consolidation came up for consideration before the Hon'ble Apex Court In Re: Expeditious Disposal of Cases under Section 138 of the N.I. Act, 1881 (supra) and in para-13, 14, 15, 16 has been observed as under:

"13. Section 219 of the Code provides that when a person is accused of more offences than one, of the same kind, committed within a space of 12 months, he may be tried at one trial for a maximum of three such offences. If more than one offence is committed by the same person in one series of acts so committed together as to form the same transaction, he may be charged with and tried at one trial, according to Section 220. In his preliminary report, the learned Amici Curiae suggested that a legislative amendment is required to Section 219 of the Code to avoid multiplicity of proceedings where cheques have been issued for one purpose. In so far as Section 220 of the Code is concerned, the learned Amici Curiae submitted that same/similar offences as part of the same transaction in one series of acts may be the subject matter of one trial. It was argued by the learned Amici Curiae that Section 220 (1) of the Code is not controlled by Section 219 and even if the offences are more than three in respect of the same transaction, there can be a joint trial. Reliance was placed on a judgment of this Court in Balbir v. State of Haryana & Anr. to contend that all offences alleged to have been committed by the accused as a part of the same transaction can be tried together in one trial, even if those offences may have been committed as a part of a larger conspiracy.

14. The learned Amici Curiae pointed out that the judgment of this Court in Vani Agro Enterprises v. State of Gujarat & Ors. needs clarification. In Vani Agro Enterprises (supra), this Court was dealing with the dishonour of four cheques which was the subject matter of four complaints. The question raised therein related to the consolidation of all the four cases. As only three cases can be tried together as per Section 219 of the Code, this Court directed the Trial Court to fix all the four cases on one date. The course adopted by this Court in Vani Agro Enterprises (supra) is appropriate in view of the mandate of Section 219 of the Code. Hence, there is no need for any clarification, especially in view of the submission made by the learned Amici that Section 219 be amended suitably. We find force in the submission of the learned Amici Curiae that one trial for more than three offences of the same kind within the space of 12 months in respect of complaints under Section 138 can only be by an amendment. To reduce the burden on the docket of the criminal courts, we recommend that a provision be made in the Act to the effect that a person can be tried in one trial for offences of the same kind under Section 138 in the space of 12 months, notwithstanding the restriction in Section 219 of the Code.

15. Offences that are committed as part of the same transaction can be tried jointly as per Section 220 of the Code. What is meant by ?same transaction? is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. There is no ambiguity in Section 220 in accordance with which several cheques issued as a part of the same transaction can be the subject matter of one trial.

16. The learned Amici Curiae have brought to our notice that separate complaints are filed under Section 138 of the Act for dishonour of cheques which are part of the same transaction. Undue delay in service of summons is the main cause for the disproportionate accumulation of complaints under Section 138 before the courts. The learned Amici suggested that one way of reducing the time spent on service of summons is to treat service of summons served in one complaint pertaining to a transaction as deemed service for all complaints in relation to the said transaction. We are in agreement with the suggestion made by the learned Amici Curiae. Accordingly, the High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction."

14. The judgment which has been relied by the Vani Agro Enterprises (supra) has been considered. Since the orders subject matter of challenge negating the claim of the applicant for consolidation of the three cases does not consider the law laid down In Re: Expeditious Disposal of Cases under Section 138 of the N.I. Act, 1881 (supra), thus, the order cannot be sustained.

15. Accordingly, the applications are being decided in the following manner.-

(a) the order dated 18.09.2024 in Complaint Case No. 3474 of 2020 (leading application), order dated 18.09.2024 in Complaint Case No. 3481 of 2020 (connected C1 application), order dated 18.09.2024 in Complaint Case No. 3478 of 2020 (connected C2 application), are set aside;