Allowed

Praveen Sankhla v. Anil Joshi

Rajasthan HC24 Apr 2024CRLMP/5558/2023

Case brief

AI extract

What is this about?

This Criminal Misc. Petition challenged the consolidation of four separate Section 138 NI Act cases into one trial. The High Court held that Section 142A mandates transfer to the court of the first filing and prohibits consolidation, ruling Section 220 CrPC inapplicable to separate NI Act complaints. The petition was allowed.

What did the court decide?

The impugned order dated 08.05.2023 consolidating four cases is quashed and set aside. The stay petition is disposed of accordingly.

Praveen Sankhla Vs Anil Joshi — Cheque Dishonour | Rajasthan HC (2024)

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[2024:RJ-JD:17884]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 5558/2023

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Praveen Sankhla S/o Shri Teekam Singh Sankhla, Aged About 39 Years, R/o Hanslav Ki Pal, Chainpura Mandore Jodhpur Raj.

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----Petitioner

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Versus

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Anil Joshi S/o Shri Niranjan Lal Joshi, R/o 66 Hanuwant-B Street No. 10, B.J.S. Colony Paota B Road, Jodhpur Raj.

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----Respondent

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For Petitioner(s)	: Mr.	Deepak Nehra
For Respondent(s)	: Dr.	Arun Kumar, PP
	Mr.	Niranjan Lal Joshi
	Ms.	Kirti Pareek
	Mr.	Gopi Ram Goyal

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Order

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DATE OF ORDER: 24/04 /2024

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The present criminal misc. petition under Section 482 of CrPC has been preferred by the complainant-petitioner for quashing of order dated 8.05.2023 passed by the learned Special Metropolitan Magistrate (N.I. Act Cases) No.4, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as the learned trial Court) in Criminal Original Case No.522/2017, whereby the learned Trial Court allowed the application filed by the accusedrespondent under Section 220 of CrPC and ordered for consolidation of trial of four cases pending between the parties under NI Act.

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Brief facts in nutshell are that the accused-respondent borrowed a sum of Rs.20,50,000/- from the complainantpetitioner for his personal requirements. On demand, the accused-

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respondent delivered four different cheques of his account in the State Bank of India, Branch Paota 'B' Road, Jodhpur containing separate dates and separate amounts to the petitioner. An agreement dated 05.12.2016 was also executed by the respondent in favour of petitioner.

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Since the cheques were of different dates, therefore, the petitioner presented those cheques in his bank on concerned dates. However, the same were dishonored by the bank and return memos were issued. After serving the required notices upon the respondent, when the respondent failed to pay the amount, the petitioner filed complaints against the respondent under Section 138 of the Negotiable Instruments Act in respect of each cheque. Thereafter, the accused-respondent filed an application dated 03.08.2022 under Section 220 of CrPC in Criminal Original Case No.522/2017 before the learned trial Court inter-alia stating that four separate cases are pending before the learned trial Court in which the rival parties are same and the cases pertain to a single transaction, and therefore, the cases are required to be consolidated, or else there is a possibility of contradictory orders being passed.

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Learned trial Court vide impugned order dated 08.05.2023 has allowed the application filed by the accused-respondent and consolidated the trial of all the four cases, hence the present criminal misc. petition.

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Learned counsel appearing for the petitioner submits that the learned trial Court has committed illegality in consolidating the four cases. It is submitted that the N.I. Act is a special statute which provides for the procedure to be adopted in the cases filed

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under the Act. Learned counsel submits that there is a clear provision in sub-section (2) & (3) of Section 142-A of the N.I. Act which states that where there are more than one cases pending between the same parties, they shall be transferred to the Court before which the first case was filed. Learned counsel submits that since there is no provision for consolidating the trial of all the cases and there is no intention of the legislature to consolidate trial of all the cases pending between the same parties, the learned Trial Court has committed grave illegality while passing the impugned order. Further, it is submitted that the learned trial Court has committed grave error in accepting the application under Section 220 of the Cr.P.C. because firstly, the N.I. Act being a special law overrides other laws and the process of Cr.P.C. shall take effect only when there is no specific provision in the special Act. Secondly, even the provisions of Section 220 of Cr.P.C. do not allow the consolidation of the cases of the nature involved in this matter. Learned counsel appearing for the petitioner further submits that Section 220 of Cr.P.C. is merely an enabling provision where the Court can try several offences in one trial, but when several complaints were filed under N.I. Act, they cannot be clubbed together. It is submitted that Section 220 CrPC has no application in the facts of the present case in view of the fact that different complaints of separate cheques bearing different amounts and different dates were filed under Section 138 of N.I. Act. In support of his arguments, learned counsel appearing for the petitioner has relied upon the judgment of Hon'ble Supreme Court delivered in the case of Damodar S. Prabhu vs. Sayed Babalal H. (Criminal Appeal No.963/2010), decided on

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03.05.2010 and the judgment of Hon'ble Andhra Pradhesh High Court delivered in the case of Ms. Steel City Securities Limited, Secunderabad rep. by K. Krishna Prasad Vs. P.D.V. Prasad

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and Another , reported in 2007 (1) Bankmann 497.

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Per contra, learned counsel appearing for the accusedrespondent opposed the prayer made by learned counsel for the petitioner. It is submitted that on a bare perusal of Section 220 of Cr.P.C., it is clear that if, in one series of act 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. Therefore, the learned trial Court has not committed any illegality while allowing the application under Section 220 of Cr.P.C. preferred by the accusedpetitioner. The cheques issued in favour of petitioner pertained to same transaction though they had different dates and were of different amounts. In support of his arguments, learned counsel appearing for the respondent has relied upon the judgment of Madhya Pradesh High Court delivered in the case of Mukesh Birthare Vs. Deepak Sharma reported in I.L.R. (2011) M.P., 1777.

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Heard learned counsel for the parties and perused the material available on record.

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Before proceeding further, it would be apt to quote the provisions of Section 142A of N.I. Act as inserted vide the Negotiable Instruments (Amendment) Act, 2015. Section 142A reads as under:-

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"142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142,

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as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times.

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(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that Court.

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(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, before which the first case was filed and is pending, as if that sub-section had been in force at all material times."

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Sub-section 2 of Section 142A of the N.I. Act specifically provides that where the payee or the holder in due course has filed a complaint against the drawer of a cheque in the Court having jurisdiction or the case has been transferred to that Court and such complaint is pending in that court, all subsequent complaints arising out of Section 138 N.I. Act against the same drawer shall be filed before the same Court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court or not.

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On a bare reading of Section 142A, it is clear that there is no provision for consolidation of cases and further, Section 142A provides that if there are more than one cases between the same parties, then all those cases shall be transferred to the Court in which the first complaint was filed.

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In M/s. Steel City Securities Limited (supra) , the Hon'ble Andhra Pradesh High Court in para No. 6 and 8 has held as under :-

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"6. Section 220 Cr.P.C. is only enabling provision where the Court can try several charges in one trial. But when several complaints in criminal cases were filed they cannot be clubbed together. Section 220 Cr.p.C. has no application at all in view of the fact that different complaints were filed and cognizance in all the cases was taken under Section 138 of the Act.

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In the instant case, though the transactions arise and out of the ledger account 6787 under the running account with the accused, but different cheques were alleged to be issued in partial discharge of the total liability of Rs.14,21,909.86 due as on 7.10.2001. The cause of action that return of cheques, giving a notice, receipt of notice are entirely different from one case to another clubbing of two criminal cases is unknown to criminal law unless the case comes under Section 220 Cr.P.C. The complaint under Section 138 of the Act is under a special enactment and the provisions of the Act will prevail over the general Provisions of Criminal Procedure, 1973. So the analogy under Section 220 Cr.P.C. is not applicable to the complaints filed under section 138 of the Act in the present case. Hence clubbing of the complaints is nothing but abuse of process of Court."

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The Hon'ble Andhra Pradesh High Court in the aforesaid case has specifically held that the complaint under Section 138 of the N.I. Act is under a special enactment and the provisions of the special Act will prevail over the general provisions of Criminal Procedure Code in view of the language employed under Section 142(1) of the Act which begins with a notwithstanding clause with respect to Cr.P.C.

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Insofar as the judgment cited by learned counsel appearing for the respondent in the case of Mukesh Birthare Vs. Deepak

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(7 of 7)

Sharma (supra) is concerned, the same is distinguishable from the facts and circumstances of the present case.

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In view of the above, this Court is of the considered opinion that the learned trial Court has committed grave illegality while passing the impugned order directing to consolidate as many as four complaints filed by the complainant-petitioner under Section 138 of the N.I. Act as the same is not only barred by the provisions of Section 142A of the N.I. Act but also the same is nothing but an abuse of the process of Court. Further, all the four cases filed against the accused are pending before the learned Special Metropolitan Magistrate (N.I. Act Cases) No.4, Jodhpur, Metropolitan, Jodhpur, therefore, there was no need to consolidate the cases.

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Accordingly, the present Criminal Misc. Petition is allowed. The impugned order dated 08.05.2023 passed by learned Special Metropolitan Magistrate (N.I. Act Cases) No.4, Jodhpur, Metropolitan, Jodhpur in Criminal Original Case No.522/2017 is quashed and set aside.

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Stay petition also stand disposed of accordingly.

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(MADAN GOPAL VYAS),J

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532-neha/-

Praveen Sankhla v. Anil Joshi

Case brief

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Praveen Sankhla v. Anil Joshi

Case brief

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