Shree Lalit Fabrics Pvt. Ltd. And ... vs Linkers Associates Ltd. And Ors.
1995 Latest Caselaw 945 Del

JUDGMENT

J.K. Mehra, J.

(1) At the outset, Counsel for the petitioners has made it clear that the matter if already pending before the Board for Industrial and Financial Reconstruction and for that reason, it is not possible for the petitioners to arrange for any payment at this stage.

(2) He has raised the following grounds to challenge the impugned order :-

1.That 20 complaints were filed in respect of dishonour of 20 cheques, but pre-cognizance evidence was recorded only in one case and not in each case. Therefore, the cognizance taken in other 19 cases is bad in law. 2. Taking cognizance by mere placing carbon copies of the order paused in the lead case, on the record of other 19 cases by changing cause title and without ordering that the evidence recorded in the lead case, will also be read as evidence in the other 19 cases is bad in law. 3. It is pointed out that even in the lead case the Magistrate passed one non-speaking order taking cognizance of the offence on the basis of the statements recorded and documents placed on record without discussing the evidence and that he should have given detailed reasons discussing the evidence. 4. That a separate notice for each cheque is required to be given under Section 138 of Negotiable Instruments Act and on consolidated notice in respect of a number of cheques, as was the case in the present case, is bad in law and no action could be initiated under Section 138 of the Negotiable Instruments Act on the basis of such consolidated notices.

(3) I am afraid, I am unable to agree with any of the contentions raised by the Counsel. It is open to the Trial Court in a set of given cases where common evidence has to be recorded and or otherwise it will be in the interest of justice to save time and expense to record evidence in one case and direct that a copy each of such evidence be placed on record of other cases and that it would be read in all the case and shall form part of the record of those cases also. Omission to pass such an is a mere irregularity as is clear from the circumstances of the present case. I have gone through the official record and from a perusal of the statements recorded at the documents proved by the two witnesses examined by the complainant, I the that the evidence covers the evidence relating to the offences in the remaining cases as well. I, therefore, direct that a copy each of the statements recorded and documents connected with each complaint be placed on record of each case at shall be treated and read as evidence in each of the cases.

(4) After perusing the evidence and the documents, I find that there is perversity in the Trial Court recording its satisfaction of a prima facie case have been made out against the petitioners to take cognizance of the offence and sum the accused. The non reorder of the basis for such satisfaction by not discussing t evidence in the face of the evidence on record, to my mind, leas not caused a prejudice to the petitioners, who have ample opportunity to test the veracity those witnesses by cross-examining them at the appropriate stage and if necessary by leading defense. In the circumstances, passing identical orders in all 20 case does not by itself amount to illegality.

(5) Coming to the question of requirement of separate notice for each cheque even if it is accepted that a separate notice for each cheque is desirable as it making easier for the party concerned to discharge its liability within the notice period, such a requirement cannot be read into Section 138 as a mandatory requirement When a party issues cheque, it is supposed to know whether it has the means to honour the cheque. From the cheques, I find that they were all different dates and on each occasion, the said cheques were dishonoured ' presentation, from time to time, for the reason of insufficiency of funds. A cannot be said to loose its right to initiate a criminal complaint merely on the group that the notice related to more than one cheque. Such interpretation of Section 1 of Negotiable Instruments Act would be contary to the very spirit of enactment Section 138. Therefore, I do not consider that a notice in respect of more than o cheques disentitles the payee to initiate action under Section 138 of the Negotiable Instruments Act. IN the circumstances, I find no merit in this petition which is dismissed subject however, to the directions regarding placing copies of evidence on the record each case contained hereinabove. No order as to costs.