M/S Purvanchal Biotech Pvt. Ltd. & ... vs M/S Sriram Solvent Extraction ...
2023 Latest Caselaw 2149 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

      Criminal Misc. Application No.1135 of 2014
            (Under Section 482 of the Cr.P.C)


M/s Purvanchal Biotech Pvt. Ltd. & another ... Applicants

                            Versus

M/s Sriram Solvent Extraction Pvt. Ltd. .... Respondent

Present:-
      Mr. Sudhir Kumar, learned counsel for the applicants.
      Mr. Jitendra Chaudhary, learned counsel for the respondent.

                         Judgment Reserved on: 19.05.2023
                         Judgment Delivered on: 09.08.2023

Per: Hon'ble Pankaj Purohit, J.

This C482 application is directed against the summoning order dated 18.07.2013, passed by learned Special Judicial Magistrate, Kashipur District Udham Singh Nagar in Criminal Complaint Case No.337 of 2013, M/s Sriram Solvent Extraction Pvt. Ltd. vs. M/s Purvanchal Biotech Pvt. Ltd. & another, whereby, after taking the cognizance under Section 138 of Negotiable Instruments Act, 1881, applicants were summoned to face the trial. The applicants have also prayed to quash the entire proceedings of the aforesaid criminal complaint case.

2. The complaint was filed by the respondent against the applicants under Section 138 of Negotiable Instruments Act, 1881 in the court of Special Judicial Magistrate, Kashipur on 14.05.2013. In the said complaint, it has been stated that the complainant- Company is a registered Company which deals in the production of Neem Organic Manure and Bio Pesticides etc., and the complainant-Company owed a sum of Rs.4

lacs against the applicants who purchased bio pesticides, Neem Organic Manure, on credit, from the complainant- Company. Two cheques bearing no.539358 dated 15.12.2012 for Rs.2,50,000/- and Cheque No.539359 dated 15.12.2012 for Rs.1,50,000/- were issued to the complainant-Company drawn at I.C.I.C.I. Bank, Faizabad Branch to the applicants for the aforesaid amount of Rs.4.00 lakh with the assurance that whenever the aforesaid cheques would be presented to the banker of the complainant-Company, the same would be encashed. When the respondent-complainant presented the cheques to his banker Bank of Baroda, Main Branch Kashipur for encashment, both the cheques were dishonoured by his banker vide memo dated 13.03.2013 issued by the bank with the endorsement "insufficient funds". The respondent

-complainant issued two registered notices through his Advocate-Anand Swaroop Rastogi to the applicants on 10.04.2013 by registered A.D. on the address of the applicants, which were served upon them on 13.04.2013. However, even after receipt of notice and demand for making the payment of the cheques' amount, no payment was made by the applicants, and consequently, the aforesaid complaint case under Section 138 of the Negotiable Instruments Act, 1881 was filed in the court of learned Special Judicial Magistrate, Kashipur, District Udham Singh Nagar. The learned Magistrate after perusal of evidence of the respondent-complainant under Section 200 of Cr.P.C. and considering the relevant documents, took cognizance against the applicants under Section 138 of the Negotiable Instruments Act,1881 and summoned the applicants vide impugned summoning order dated 18.07.2013.

3. Feeling aggrieved by the aforesaid summoning order dated 18.07.2013 and challenging the entire proceedings of the criminal complaint case, the applicants have filed the present C482 application.

4. Heard learned counsel for the parties.

5. At the outset, it has been submitted by learned counsel for the applicants that although this C482 application was moved on the ground of lack of territorial jurisdiction that since the cheques were issued and drawn at Faizabad branch of ICICI Bank, the Courts at Kashipur had no jurisdiction, but after the controversy regarding the territorial jurisdiction has been put to rest by the Hon'ble Apex Court in the case of "Dashrath Rupsingh Rathod vs State Of Maharashtra & Anr" (2014) 9 SCC 129, and subsequent amendment of Section 142 (2) of the Negotiable Instruments Act, 1881 vide amending Act No.26 of 2015 (w.r.e.f. 15.06.2015), the said ground is no longer in existence in favour of the applicants, and the same is, accordingly, not pressed. However, he put his challenge to the summoning order on other grounds as agitated in the C482 application.

6. It is strenuously argued by learned counsel for the applicants that since two cheques were issued by the applicants in favour of the complainant-Company and two notices were sent by the complainant-Company for the payment of cheque amount, the single complaint filed by the respondent was not maintainable. He further submitted that the impugned summoning order cannot be sustained for the reason that the respondent-Company did not produce any document, on record, to show that

there was any substantial debt or liability enforceable under law against the applicants, and as such the notices and entire proceedings are wholly illegal.

7. At the same time, it was contended by learned counsel for the applicants that there was dispute between the parties regarding the amount and in order to pressurize the applicants, the respondent-Company used the aforesaid cheques, admittedly given by the applicants as security, to the complainant-Company without any notice or knowledge of the applicants. He also tried to convince that issuance of two cheques, of different amounts, on the same day was unnatural.

8. As against the argument made by learned counsel for the applicants, learned counsel for the respondent-Company submitted that the scope under Section 482 of Cr.P.C. is to be exercised in the rarest of rare cases, and that too, in order to prevent the abuse of process of law and for the ends of justice. He emphatically argued that there is no denial on the part of the applicants that the cheques were not issued by them, rather issuance of the cheques and their signatures, thereon, are admitted, and it is also admitted that there were business transactions between the parties. According to the learned counsel for the respondent- Company, there was enough material before the learned Magistrate to summon the applicants. The question whether there was any liability or debt etc. of the applicants against the respondent-Company, can only be gone into by the learned Magistrate during the trial proceedings.

9. He further strenuously submitted that this Court cannot go into the disputed question of facts at this stage, which requires appreciation of the evidence. In order to meet the argument that single complaint in respect of two cheques is not maintainable, learned counsel placed reliance upon two judgments of Karnataka High Court (1) Tiruchandoor Muruhan Spinning vs. Madanlal Ramkumar Cotton, reported in 2001 (1) KarLJ 360 and (2) C. Hemanthkumar vs. M/s Spectra Lamps Pvt. Ltd., a recent one, delivered on 14.10.2022 in Criminal Appeal No.422 of 2015.

10. According to learned counsel for the respondent, these two case laws directly hit the argument raised by learned counsel for the applicants. It has been settled in the aforesaid judgments by the Karnataka High Court that for two cause of action, one complaint is maintainable. For the sake of convenience, Paragraph No.6 of the judgment in Tiruchandoor Muruhan Spinning (Supra) is quoted below:-

"6. Insofar as the important question raised for consideration in this petition that the provisions of Section 219 of the Cr. P.C. is attracted to the facts of the case is concerned, it is contended that cause of action for the complainant arose only after service of notice to the accused. It is pointed out that the complainant has issued a single notice calling upon the accused by way of demand to pay the cheque amount within 15 days from the date of service of notice and the accused failed to pay the cheque amount within the time stipulated under Section 138(b) of the Act and therefore the complainant filed a complaint within one month from the date of service of notice which is well within time. There is no bar for lodging a complaint for initiation of action under Section 138 of the Negotiable Instruments Act as the accused committed the offence punishable under Section 138 of the Negotiable Instruments Act. In fact it is not to his disadvantage but it is an advantage that a single complaint is lodged against the accused by the complainant. The cause of action giving raise to a complaint is upon the service of notice contemplated under Section 138(b) of the Negotiable Instruments Act and not upon the dishonour of the cheques

and therefore the contention canvassed by the learned Counsel for the respondent that the provisions of Section 219 of the Cr.P.C. are not applicable to the proceeding under Section 138 of the Negotiable Instruments Act has to be accepted."

11. The Karnataka High Court in the aforesaid judgments unambiguously and in unequivocal terms held that provisions of Section 219 of Cr.P.C. are not applicable to the proceedings under Section 138 of the Negotiable Instruments Act, 1881 as lodging of single complaint for different cause of action(s) is an advantage to the accused. The Karnataka High Court made it clear that the cause of action for lodging the complaint arose only after the service of notice to the accused.

12. The Hon'ble Apex Court in Suo Motu Writ Petition (Crl.) No.2 of 2020 dated 16.04.2021 in Re: Expeditious Trial of Cases under Section 138 of the Negotiable Instruments Act, 1881, dealt with the aforesaid issue in paragraph nos.13, 14 and 15, wherein, it has been stated that the offence committed as part of the same transaction can be jointly tried as per Section 220 of the Cr.P.C. For ready reference, aforesaid paragraphs are quoted hereinbelow:-

"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 (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 (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."

13. In view of the aforesaid law laid down by the Hon'ble Apex Court, as quoted hereinabove, the argument

advanced on behalf of the applicants is liable to be, and is, accordingly, rejected.

14. The upshot of the aforesaid discussion makes it clear that there is no illegality or perversity in the impugned order passed by the Court below summoning the applicants to face the trial. Accordingly, there is no merit in the present C482 application and the same is, accordingly, dismissed. Interim protection granted to the applicants vide order dated 16.9.2014 passed by the Co- ordinate Bench of this Court is hereby vacated.

15. Registry is directed to send a copy of this order to the Court below with a direction to proceed with the trial forthwith which is pending since 2013.

(Pankaj Purohit, J.) 09.08.2023 AK