Ghulam Hassan Rather vs Haji Qazim Ali Khan
2023 Latest Caselaw 1000 j&K/2

                                                               Serial No. 3
                                                               Suppl list
 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR
                                              CRM (M) No. 331/2023
                                              CrlM No. 804/2023
                                              Caveat No. 1500/2023

                                              Pronounced on : 22.08.2023

Ghulam Hassan Rather
                                                  ..... Appellant/petitioner(s)
                                Through: -
                   Mr. Sahil Parvez Kachroo, Advocate.

                                        V/s
Haji Qazim Ali Khan                                       ..... Respondent(s)

                              Through: -
                     Mr. Mir Mohammad Yaqoob, Advocate.

CORAM: HON'BLE MR JUSTICE PUNEET GUPTA, JUDGE
                               JUDGMENT

1. The petitioner herein has challenged the order dated 02.12.2020 passed by the trial court whereby the court has taken cognizance of the complaint filed under Section 138 of the Negotiable Instruments Act and the order dated 23.06.2023 passed by the court of learned Principal Sessions Jude, Budgam whereby the court has dismissed the revision petition filed by the petitioner herein. The petitioner is the accused and the respondent is the complainant before the trial court.

2. The main ground for impugning the orders is that a single complaint could not be filed for seven cheques which are stated to have been issued by the petitioner/accused as the cause of action for each cheque is different. In any case not more than three cheques could be the subject matter of the complaint if to be filed under Section 138 of the Negotiable Instruments Act as Section 219 (1) of the Code of Criminal Procedure ordains so.

3. The complaint stands filed against the petitioner herein wherein it is stated that the seven cheques issued in favour of the complainant by the accused on different dates stand dishonoured when presented on the dates specified in the cheques. The memo regarding dishonour of

cheques was returned on 02.11.2000. It is also submitted in the complaint that the legal notice was also issued to the accused for payment of cheques. Further that the parties were having business transaction of carpets for last five years and during course of the business an amount of Rs. 12 lacs became due to the complainant and as a result of the same, the cheques in question were issued to the complainant drawn at the Jammu and Kashmir Bank, Gali Bajrang Bali, Chawri Bazar Delhi. The cheques were returned unpaid as sufficient funds were not available in the account of the accused.

4. The trial court took cognizance of the complaint under Section 138 of the Negotiable Instruments Act and summoned the petitioner/accused.

5. Aggrieved by the order of cognizance passed by the trial court the accused filed the revision petition which was dismissed by the revisional court on the ground that the facts disclosed in the complaint constitute one offence and it cannot be said that seven offences have been committed by the accused and Section 219 Cr.P.C has no application in the present case.

6. The relevant extract for the purposes of discussion of Section 219 Cr.P.C. of the Code of Criminal Procedure reads as under: -

"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...."

7. Learned counsel appearing for the petitioner/accused has of course argued in terms of what has been pleaded in the present petition.

8. The main argument of the learned counsel for the petitioner is that a single complaint could not have been filed for seven cheques as transaction for each cheque is different and in any case in terms of Section 219 Cr.P.C, the complainant could file a single complaint for three cheques.

9. Learned counsel appearing for the respondents, on the other hand, has argued that the complaint is very much maintainable under Section 138

of the Negotiable Instruments Act as the seven cheques though issued on different dates a single notice was issued to the accused for those seven cheques and that a single information regarding the dishonoured of cheques was received.

10. The learned counsel for the petitioner has referred to the order passed by the Hon'ble Supreme Court in suo moto Writ Petition (Crl) No. 2 of 2020 dated 16.04.2021 in order to impress upon the court that seven cheques could not be the subject matter of one complaint filed by the respondent/accused.

11. The Court in the aforesaid judgment only recommends suitable amendments in the Negotiable Instruments Act providing of one trial against a person for multiple offences under Section 138 of the Negotiable Instruments Act which are committed within a period of 12 months inspite of the restriction in Section 219 of the Code. The Judgment by itself does not apply to the facts of the present case.

12. Learned counsel for the respondent has, on the other hand, referred to judgment of the Punjab and Haryana High Court [2013 Legal Eagle (P&H) 1117], wherein the Division Bench held that a single complaint is maintainable when different cheques on a single date are presented and a single notice was issued. The court further held that as the cheques are presented together on a particular day as per the averments of the complainant and that a consolidated notice giving rise to the same transaction was given, they are interlinked and interconnected together in series of fact to form the same transaction.

13. The cheques purportedly issued by the accused form part of a single transaction or different one cannot be finally determined by this Court at this stage though the complainant in the complaint mentions of issuance of cheques in pursuance to the transactions between him and the accused. The provisions of Section 219 Cr.P.C would apply in the case in hand so as to knock out the case of the complainant wherein seven cheques have been mentioned to have been issued and get dishonoured cannot be adjudicated upon in the present petition. The Court is of the view that the revisional court has erred in stating that the facts disclosed in the complaint constitute one offence and that Section 219 Cr.P.C has

no application in the present case as it is a matter of trial whether the cheques in question could be clubbed in a single complaint. What is matter of trial cannot be determined in the present petition. It is for the petitioner/accused to take the defence whatever available to him during the course of trial including the one that a single complaint is not competent for seven cheques.

14. The Court will not entertain the petition under Section 482 Cr.P.C unless there are exceptional circumstances which the court considers that in case the proceedings before the trial court are allowed to continue, the same shall be abuse of process of law. The Court in exercise of powers vested under Section 482 Cr.P.C cannot determine the disputed questions of fact which may be raised by the party in the criminal proceedings.

15. As stated above, it is a matter of trial that the argument raised by the petitioner herein carries weight or not cannot be determined in the present petition.

16. Resultantly, the petition is disposed of in the light of the aforesaid discussion. The finding of the revisional court will not come in the way of the petitioner herein to agitate the argument raised in the present petition during the course of trial.

(PUNEET GUPTA) JUDGE

SRINAGAR 22.08.2023 Pawan Chopra

Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No