Delhi High Court
M/S Modelama Exports Ltd. vs Trimurti Exports & Ors. on 26 March, 2015
$~33, 30, 31 & 32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: March 26, 2015
+ (i) CRL.M.C. 3410/2014
M/S MODELAMA EXPORTS LTD ..... Petitioner
Through: Mr. Rajat Wadhwa, Mr. Amritansh
Batheja, Mr. Milan Malhotra and
Mr. Kunal, Advocates
versus
TRIMURTI EXPORTS & ORS .....Respondent
Through: Mr. Virender Goswami, Ms. Soni
Singh, Ms. Swati Goswami and
Mr. Shubham Agarwal, Advocates
+ (ii) CRL.M.C. 3380/2014
M/S MODELAMA EXPORTS LTD ..... Petitioner
Through: Mr. Rajat Wadhwa, Mr. Amritansh
Batheja, Mr. Milan Malhotra and
Mr. Kunal, Advocates
versus
BALCHANDRA S BAKHLE ..... Respondent
Through: Mr. Virender Goswami, Ms. Soni
Singh, Ms. Swati Goswami and
Mr. Shubham Agarwal, Advocates
+ (iii) CRL.M.C. 3388/2014
M/S MODELAMA EXPORTS LTD ..... Petitioner
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 1
Through: Mr. Rajat Wadhwa, Mr. Amritansh
Batheja, Mr. Milan Malhotra and
Mr. Kunal, Advocates
versus
DEVENDRA N KAMAT ..... Respondent
Through: Mr. Virender Goswami, Ms. Soni
Singh, Ms. Swati Goswami and
Mr. Shubham Agarwal, Advocates
+ (iv) CRL.M.C. 3409/2014
M/S MODELAMA EXPORTS LTD ..... Petitioner
Through: Mr. Rajat Wadhwa, Mr. Amritansh
Batheja, Mr. Milan Malhotra and
Mr. Kunal, Advocates
versus
RASHID KHAN ..... Respondent
Through: Mr. Virender Goswami, Ms. Soni
Singh, Ms. Swati Goswami and
Mr. Shubham Agarwal, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
%
In the above captioned first petition [CRL.M.C.3410/2014],
respondent No.1-Firm and its three partners are accused in a complaint
under Section 138 of the Negotiable Instruments Act, 1881 pertaining to
dishonouring of nine cheques, out of which one cheque is issued by
respondent-Rashid Khan whereas remaining 8 cheques have been signed
by respondent-Devendra N. Kamat. As regards other remaining three
petitions, respondents-Balchandra S. Bakhle [in CRL.M.C.3380/2014]
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 2
and Devendra N. Kamat [in CRL.M.C.3388/2014] have issued three
cheques each and respondent-Rashid Khan [in CRL.M.C.3409/2014] has
issued four cheques in respect of one transaction.
Vide order of 5th May, 2014 petitioner's application for joint trial is
declined by trial court while observing that the accused in the four
complaint cases under Section 138 of the Negotiable Instruments Act,
1881 are different and cheques in question are signed by different
accused persons.
With the consent of learned counsel for the parties, the above
captioned four petitions were heard together and are being disposed of by
this common judgment.
At the hearing, learned counsel for petitioner-complainant had
placed reliance upon Apex Court's decision in State Bank of India v.
Ranjan Chemicals Ltd. and Another (2007) 1 SCC 97 to submit that a
joint trial can be ordered by the court if it appears that the facts are
common and right to relief is claimed in respect of series of similar
transactions. It was submitted by learned counsel for petitioner that the
cheques, which are subject matter of four complaints in these petitions,
were issued in respect of one transaction and instead of petitioner being
cross-examined four times, it would be appropriate if the joint trial is held
so that a composite and effective cross-examination is conducted as
petitioner is the complainant in all the four complaints in question. Thus,
quashing of impugned order is sought in these four petitions.
In support of above submissions, reliance has been placed upon
decisions in Indian Bank Association and Others v. Union of India and
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 3
Others 2014 (5) SCALE 323, Gulshan Kumar Ahuja v. Veena Sharma
107 (2003) DLT 725.
Learned counsel for respondents had supported the impugned order
and had submitted that Section 219 of Cr.P.C. is not attracted to the facts
of this case as it is confined to three offences whereas in the instant case,
there are four complaints and the parties are not common and so, there
cannot be a joint trial in these complaint cases. Learned counsel for
respondents further submitted that respondents-Balchandra S. Bakhle [in
CRL.M.C.3380/2014], Devendra N. Kamat [in CRL.M.C.3388/2014] and
Rashid Khan [in CRL.M.C.3409/2014] have issued cheques in their
individual capacity from their own account as guarantee in a single
transaction and not as partners of respondent-Firm-M/s.Trimurti Exports.
However, learned counsel for respondents had admitted that the cheques
in question have been issued in a span of one year.
To seek dismissal of these four petitions, reliance was placed by
learned counsel for respondents upon decision in Kershi Pirozsha
Bhagvagar v. State of Gujarat & Anr. 2007 SCC Online Guj. 268 and
decision of a co-ordinate Bench of this Court in CRL.M.C.646/2008 titled
Hitesh Nagpal v. State & Anr. rendered on 13th March, 2009.
During the course of hearing, learned counsel for petitioner had
submitted that as per petitioner's complaint, nine cheques were issued by
respondent-accused Firm i.e. M/s.Trimurti Exports whereas nine cheques
were issued by respondents-accused persons Rashid Khan, Balchandra S.
Bakhle and Devendra N. Kamat as the guarantee in respect of single
transaction, both on behalf of respondent-accused Firm and by the
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 4
partners in their personal capacity.
Upon hearing and on perusal of the impugned order and the
decisions cited, I find that the chief-examination of petitioner-
complainant in the four complaint cases in question except for the details
regarding the dishonouring of cheque, etc. is almost identical. It is a
matter of record that in CRL.M.C.3410/2014, nine cheques have been
issued i.e. one cheque by respondent-Rashid Khan and remaining 8
cheques by respondent-Devendra N. Kamat, who are respondents in
CRL.M.C. 3409/2014 and CRL.M.C.3388/2014. Infact the parties in
these complaints are actually the same and the transaction is the same,
which took place during a span of one year.
In Gulshan Kumar Ahuja v. Veena Sharma 107 (2003) DLT 725, it
has been held that there is no prohibition in the Code of Criminal
Procedure or the Negotiable Instruments Act, 1881 against joint trial for
two similar offences under Section 138 of the Negotiable Instruments
Act, 1881. Rather, on parity of reasoning, joint trial of similar offences
must be ordered for an effective decision. Dishonouring of the cheques in
question is within a span of one year. Trial court has adopted a hyper
technical approach by observing that the accused persons are not common
in these complaint cases, which pertain to dishonouring of nine cheques.
The remaining ten cheques, which are subject matter of the connected
complaint cases under Section 138 of the Negotiable Instruments Act,
1881, pertain to one transaction. Trial court has erred in relying upon
Gujarat High Court's decision in Kershi Pirozsha Bhagvagar (supra) as
the said decision is of no avail to the case of respondents herein.
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 5
Issuance of cheques in question as a personal guarantee for the
liability to the tune of cheque amount would be of no consequence at this
juncture, for the reason that this would be the subject matter of
consideration at trial and is not required to be pre-judged at this stage. To
consider now, would be premature.
Considering the singular nature of transaction, it is deemed
appropriate that there ought to be joint trial as it would be in the interest
of the parties and for effective trial of these complaint cases. The cross-
examination of petitioner-complainant would be overlapping.
On the aspect of feasibility of holding a joint trial, pertinent
observations of the Apex Court in SBI v. Ranjan Chemicals Ltd., (2007) 1
SCC 97 are as under: -
"A joint trial is ordered when a court finds that the
ordering of such a trial, would avoid separate overlapping
evidence being taken in the two causes put in suit and it will
be more convenient to try them together in the interests of
the parties and in the interests of an effective trial of the
causes. This power inheres in the court as an inherent
power. It is not possible to accept the argument that every
time the court transfers a suit to another court or orders a
joint trial, it has to have the consent of the parties. A court
has the power in an appropriate case to transfer a suit for
being tried with another if the circumstances warranted and
justified it. In the light of our conclusion that the claim of the
Company in the suit could be considered to be a claim for
set-off and a counterclaim within the meaning of Section 19
of the Act, the only question is whether in the interests of
justice, convenience of parties and avoidance of multiplicity
of proceedings, the suit should be transferred to the Debt
Recovery Tribunal for being tried jointly with the
application filed by the Bank as a cross-suit. Obviously, the
proceedings before the Debt Recovery Tribunal could not be
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 6
transferred to the civil court since that is a proceeding
before a tribunal specially constituted by the Act and the
same has to be tried only in the manner provided by that Act
and by the Tribunal created by that Act. Therefore, the only
other alternative would be to transfer the suit to the
Tribunal in case that is found warranted or justified."
Reliance placed upon decision in Hitesh Nagpal (supra), is of no
avail to the case in hand as complainant himself is coming forward for
joint trial. This distinguishes the decision in Hitesh Nagpal (supra) from
the facts of this case.
In the considered opinion of this Court, the impugned order
erroneously declines petitioner's applications for joint trial and is hereby
quashed. Trial court is directed to ensure that joint trial in these four
complaint cases is conducted, as it is necessary for an effective
adjudication.
The above captioned four petitions are accordingly disposed of
while not commenting upon merits of this case lest it may prejudice either
side before trial court.
(SUNIL GAUR)
JUDGE
MARCH 26, 2015
s
CRL.M.C. 3380, 3388, 3409 & 3410 of 2014 Page 7
