Delhi High Court
M/S Indian Sulphacid Industries ... vs M/S Emmsons International Ltd. on 28 July, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: July 28, 2011
+ CRL.M.C.No.3723/2010
M/S INDIAN SULPHACID INDUSTRIES LTD. ....PETITIONER
Through:Mr.Kanwal Chaudhary, Advocate
Versus
M/S EMMSONS INTERNATIONAL LTD. .....RESPONDENT
Through:Mr.O.P.Arya, Advocate.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. This is a petition under Section 482 of the Code of Criminal
Procedure (Cr.P.C.) seeking quashing of complaint No.4043/01 filed under
Section 138 of the Negotiable Instruments Act 1881 (for short `N.I. Act')
titled `M/s Emmsons International Limited Vs. M/s Indian Sulphacid
Industries Ltd. and others' .
2. Briefly stated, the facts relevant for the disposal of this petition are
that M/s Emmsons International Limited filed a complaint under Section
138 read with Section 142 N.I. Act against the petitioner company and
others claiming that petitioner company purchased sulphur from the
respondent company on regular basis. During the period with effect from
20th June, 1998 to 30th November, 1998, sulphur worth `42,86,250/- was
supplied by the complainant to the respondent company. Respondent
company was having a running account against those supplies and in
discharge of their liability against those supplies, respondent company
had made part payment of `32,44,750/- as against the liability of
`42,86,250/-. Thus, on 17th March, 1999, a sum of `10,41,500/- was due
from the petitioner company. It is also claimed in the complaint that, in
order to discharge aforesaid liability, the petitioner company sent 11
cheques all dated 24th March, 1999 to the respondent company vide a
covering letter dated 24th March, 1999. 10 of those cheques were for
`1,00,000/- each and 11th cheque was for `41,500/-. Four of those
cheques bearing No.888235 to 888238 for `1,00,000/- each were
presented for encashment through the respondent company's banker.
Those cheques were dishonoured with the observation "payment stopped
by the drawer". On the receipt of dishonour memo, the petitioner sent
separate demand notices under Section 138 N.I. Act to the respondents
for respective cheques. The respondents, however, failed to make the
payment of those cheques within requisite period of 15 days. This led to
filing of a single complaint under Section 138 N.I. in respect of dishonour
of the above referred four cheques.
3. Learned Metropolitan Magistrate, after conducting preliminary
enquiry, found a prima facie case against the respondent company and
others. He, accordingly issued summons to them for 18th July, 2007.
4. Learned counsel for the petitioner submits that perusal of the
complaint would show that it is an admitted position that the respondent
had issued four separate demand notices under Section 138 N.I. Act in
respect of the dishonour of four cheques which are subject-matter of the
complaint. Thus, alleged failure of the petitioner to comply with
respective demand notices give rise to a separate cause of action.
Learned counsel for the petitioner has drawn my attention to Sections 218
and 219 of the Cr.P.C. and submitted that Section 218(1) Cr.P.C. provides
that for every distinct offence, there shall be a separate charge and for
every charge, there shall be a separate trial. Learned counsel submits
that exception to this rule is Section 219 Cr.P.C. which provides that if a
person is accused of having committed more offences of same kind within
a span of 12 months from first to last, maximum of three such offences
can be tried jointly. It is submitted that in the instant case, learned M.M.
has taken cognizance of a complaint which seeks to join four offences in
the same trial, which is in violation of the scheme of Section 219(1) Cr.P.C.
Thus, learned counsel for the petitioner has urged for quashing of the
complaint.
5. In order to properly appreciate the contention of learned counsel for
the petitioner, it would be useful to have a look on Chapter XVII Part B
Cr.P.C. dealing with joinder of charges, particularly Sections 218, 219 and
220(1) of the Cr.P.C. which are re-produced thus:-
218. Separate charges for distinct offences.
(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.
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 laws:
Provided that, for the purposes of this section, an offence
punishable under section 379 of the Indian Penal Code (45
of 1 860) 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.
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.
6. On reading of aforesaid provisions of law, it is evident that general
rule for trial is that for every distinct offence, there shall be a separate
charge and for every charge, there shall be a separate trial. Sections 219
& 220 are exception to Section 218(1) Cr.P.C. Section 219(1) provides
that when a person is accused of more offences than one of same kind
committed within a period of 12 months, he may be charged with and
tried together for more than one such offences not exceeding three at one
trial. Petitioner is trying to take benefit of this provision. Section 220(1)
of the Cr.P.C. provides that 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.
7. In the instant case, perusal of paras 4 and 5 of the complaint would
show that as per the averments in the complaint, all the four cheques in
question were allegedly handed over by the petitioner company to the
accused against a running credit account on the same date. Those four
cheques were presented for encashment to the bank on the same date
and those were received back dishonoured with the remarks "payment
stopped by the drawer". From this, it is evident that all the four cheques,
which are subject-matter of the complaint were given by the petitioner
company to the respondent against the amount outstanding as per
running account. Since the cheques dishonoured are part of the same
transaction and were issued against the running credit account, in my
considered view, Section 220(1) of the Cr.P.C. is attracted in this case. As
such, the order of learned M.M. summoning the petitioner and other co-
accused to appear and stand trial cannot be faulted, particularly when the
evidence pertaining to the offence resulting from dishonour of those
cheques is entirely common. No other plea has been pressed by the
petitioner.
8. In view of the discussion above, petition is dismissed.
(AJIT BHARIHOKE)
JUDGE
JULY 28, 2011
ks
