RAJENDRA BAPUSAHEB CHOUDHUARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Petitioner has been convicted of the offence punishable under Section 138 of the Negotiable Instruments Act in Criminal Case Nos. 91/1999, 92/1999, 762/1999, 763/1999 and 3299/1998 tried separately by adopting summary procedure, by Judicial Magistrate, First Class, Ahmednagar. Learned Magistrate has imposed separate sentence of imprisonment and fine in each of these cases. The petitioner has filed present petition for a direction that all the sentences shall run concurrently as envisaged by Section 427 of the Code of Criminal Procedure, 1973 (for short "the Code").

(2.) Brief resume of the relevant facts necessary for the decision of the petition is that the petitioner had cordial relations with Digambar Bhaurao Yeole (hereinafter referred to as "the complainant") for about four to five years prior to the transaction between them. The complainant retired from the service and received retiral benefits. As the petitioner was in financial distress, he approached the complainant for financial assistance. In view of the relationship between them, complainant advanced hand-loan of Rs. 1,60,000/- in presence of father of the petitioner. For the repayment of loan, the petitioner issued in all seven cheques, drawn on Bank of Baroda. Industrial Estate Branch, Ahmednagar, on different dates. It was agreed that the complainant should give advance intimation before encashing the cheques. As per the agreement after giving requisite intimation, complainant deposited cheques in his account with Ahmednagar Urban Co-operative Bank, Choupati Karanja Branch, Ahmednagar, on different dates. These cheques were dishonoured as requisite balance was not in the account of the petitioner with the drawee bank. The complainant, therefore, issued separate notices to the petitioner as required by the provisions of the Negotiable Instruments Act (hereinafter referred to as "the Act"). As the petitioner did not make payment of the dues within stipulated period, complainant filed separate criminal cases against the petitioner for offence punishable under Section 138 of the Act, as each default gave rise to a separate cause of action. During the trial, the petitioner admitted that the cheques were issued for discharging his liability to repay the amount borrowed from the complainant. However, regarding the dishonour of the cheques, the petitioner adopted a defence that loose cheques missing from his cheque book were utilized by the complainant. The trial Court rejected this defence in view of the admission of the petitioner that he issued and signed the cheques in question and convicted the petitioner imposing sentence of imprisonment for four months and fine of Rs. 36,000/- in Criminal Case No. 3299/1998 and sentence of imprisonment for six months and fine of Rs. 30,000/- in each of the remaining four criminal cases. A direction is given under section 357 of the Code to compensate the petitioner to the extent of the cheque amount if the fine is realised.

(3.) First contention of learned counsel for the petitioner is that the Trial Judge committed an error in not combining all the causes of action for holding a single trial. It is not possible for us to accept this contention for a simple reason that a cause of action for the prosecution in respect of dishonour of a cheque arises only if the drawer commits default in making payment within stipulated period, after receipt of the notice required to be given in conformity with proviso (b) of section 138 of the Act, in respect of each tender and the non-payment of the drawee bank on the ground that the balance amount in the account of the drawer is insufficient to Honour his commitment or it exceeds the amount arranged to be paid from that account by an agreement with the drawee bank. Each tender of a cheque and its dishonour gives rise to separate cause of action subject to a condition that separate notices are issued in respect of each of these cheques. The payee is not prevented from combining the causes of action by covering all the instances in a single notice. In such a case all the transactions covered by the notice would be regarded as a single transaction, permitting a single trial. However, in a case where cheques were issued on different dates, presented on different dates and separate notices are issued in respect of each default, the transactions cannot be held to be a single transaction attracting provision of Section 219 of the Code. In support of his contention, learned counsel has placed reliance on the judgment of this Court reported in 2001 All MR (Cri) 630 in the matter of Rajasthan Trading Company v. Chemos International Ltd. In that case, in all 27 cheques were issued on different dates but only one notice was issued by the payee. In this view of the matter it was held that single trial in respect of the 27 cheques is permissible. However, it has been categorically observed by the Court that dishonour of each cheque constitutes separate offence which should ordinarily be tried by different trials. Apart from this, it is pertinent to bear in mind that Section 219 is an enabling provision and does not mandate a single trial. In appropriate case the Court is at liberty to try the offences of the same kind in different trial. While dealing with a similar situation in the matter of Ranchhod Lal v. State of M. P. reported in AIR 1965 SC 1248, their Lordships of the Apex Court observed in paras 15 and 16 of the report thus :