Nova Vision Electronics Pvt. Ltd. and Anr. Vs. State and Anr. 2011Cri LJ 868
- . BRIEF FACTS OF THE CASE
In view of the fact that, even though the learned CMM has passed separate orders of even date in respect of applications filed in each of the seven complaints, the impugned orders in terms are identical, I propose to dispose of these petitions by a common order. Before I proceed further, it may be relevant to extract the main prayers made by the petitioners in the said applications. Application under Section 219 & 220 of Cr.P.C. To try all the seven cases pending before this Hon’ble High Court between the parties arising out of the same transaction jointly by single trial. Application under Section 145(2) of the N.I. Act. “It is, therefore, most respectfully prayed before this Hon’ble Court that, in view of the above mentioned facts and circumstances of the present matter, this Hon’ble Court may, kindly, be pleased to examine on oath in person, the authorized representative of the complainant company, who must have/had the knowledge of the facts contained therein the present matter, with the accused/applicant.” The institution of the said applications arose in the backdrop of facts and circumstances which for the purposes of convenience are best gleaned from the present petitions under consideration. The broad narrative in the petitions is as follows: 4.1 Respondent-2, which is a registered partnership firm as also the complainant in each of the seven cases instituted in the court of the learned CMM, during the period 2001 — 2003, was issued thirteen (13) cheques (in the petition there is a reference to 15 cheques while at page M of the petition, the number of cheques referred to are 13) towards purchases made by the petitioners from time to time. Each cheque is in the sum of Rs 1.00 lac. The sum total of the said cheques is Rs 13 lakhs. Each of these cheques was dishonoured albeit on different dates. Consequently, respondent-2 triggered the provisions of Section 138 of the N.I. Act. The legal pre-requisites were complied with, prior to institution of the complaints, in the court of the learned CMM. A summary of the necessary details, which in a sense is the nuts and bolts of an action under Section 138 of the N.I. Act are best captured in the table below, which is based on details given by the petitioners at page M of the petition. .
- . ISSUES INVOLVED IN THE CASE
(i) Failure to order joint trial in terms of Section 219 and Section 220, Cr.P.C. of the seven cases, was prejudicial to the petitioners interest and hence the impugned order was illegal.
(ii) Section 145(2) of the N.I. The Act mandated an examination on oath of the authorized representative of the complainant once an application to that effect is made by the accused.
(iii) The learned CMM had no power under the provisions of the Cr.P.C. to impose cost while dismissing the applications filed by the petitioners. In any event his absence at the hearing was not deliberate.
- . ARGUMENTS OF THE PARTIES
Plaintiff
In support of the first issue the learned counsel submitted that the failure on the part of the learned CMM to exercise his jurisdiction to order a joint trial is prejudicial to the interest of the petitioners, in as much as, even though the petitioners may be charged separately, they will be tried once, which apart from the convenience and saving in time and expense would prevent disclosure of their defence in the event one trial is ordered as against the situation obtaining presently, whereby they are required to go through seven separate trials. In support of this submission the learned counsel relied upon the provisions of Section 219 and Section 220 of the Cr.P.C. Special emphasis was laid on illustration „d‟ of Section 220.
5.3 The learned counsel further contended that if joint trial is not ordered the petitioners run the risk of being sentenced consecutively as against being subject to concurrent sentences. In support of his submission reliance was placed on sub-section (5) of Section 220 read with Section 71 of the Indian Penal Code, 1860 (in short the „IPC‟) and Section 31 of the Cr.P.C. To make good his submission the following judgments were cited before me.
As regards the third issue which pertains to imposition of cost the learned counsel for the petitioners submitted that his non- appearance on 3.10.2008 before the Court below, when the impugned order came to be passed, was occasioned on account of the fact that on that very date and time he was appearing in a matter listed in this Court. His explanation for not being able to appear even in the post-lunch session was that the matter listed in this Court went on for a substantial part of the day and, since the Court after hearing arguments proceeded to dictate the judgment in court, it became impossible for him to physically appear before the learned CMM on the said date. He thus submits that his absence at the hearing was not deliberate. In any event the learned counsel contends that the order imposing cost will have to be set aside, since the Cr. P.C. does not confer any power on the Magistrate to impose cost.
Defendant
As against this Mr Kalra, learned counsel appearing for the respondent No. 2 relied upon the impugned order to demonstrate that both the petitioners and his counsel had adopted dilatory tactics only to delay the culmination of the proceedings instituted in the Court below. He laid stress on the fact that the case has been pending disposal for six years and the cross-examination of the complainant/witness has not taken place despite service of notice on the accused, more than two years ago. He submitted that the record of the Court below would show a consistent pattern of absence of both the counsel and the accused. 6.1 As regards issue of joint trial Mr Kalra relied upon the view expressed by the Court below that since the complainant is prosecuting the case, the provisions for a joint trial in the Cr.P.C. should enure to its benefit. Since the complainant in this case has not sought a joint trial, no right is vested in the petitioners/accused to insist on a joint trial as a matter of right. Mr Kalra made it a point to stress that the application is woefully belated and hence has been rightly rejected by the Court below. 6.2 As regards the submission with respect to the examination on oath of the authorized representative of the complainant, who had filed his evidence by way of an affidavit, Mr Kalra relied once again on the reasoning given in the impugned order as also the judgment of the Single Judge of this Court in the case of Radhe Shyam Garg vs Naresh Kumar Gupta dated 09.05.2008 passed in Crl.MC 1522/2008; which has been affirmed by the Supreme Court vide its judgment dated 05.05.2009 in Criminal Appeal No.912/2009.
6.3 On the issue of costs the learned counsel for the respondent No.2 submitted that in view of the conduct of the petitioners the direction to pay cost as contained in the impugned order deserves to be sustained.
- . LEGAL ASPECTS INVOLVED
section 220, criminal procedure code
- . JUDGEMENT IN BRIEF
The matter, however, does not end here for the reason that the learned counsel has submitted that there is no provision empowering imposition of costs by the Magistrate. On this account Mr Vijay Aggarwal, learned counsel for the petitioners is right that there is no provision in the Cr.P.C. for imposition of costs. The impugned order is set aside to that limited extent. This, however, in my opinion, does not emasculate the High Court‟s power to impose costs where ends of justice so demand [See Mary Angel and Ors. vs State of T.N.: (1999) 5 SCC 209 at Pages 213, 216 to 217 and 222 (Paragraphs 8, 12 & 22 respectively)]. After taking into account the conduct of the petitioners it would be a travesty of justice if no cost is imposed. The petitioners have lost on substantive issues. Even in this Court submissions were advanced on the issue of interpretation of Section 145 (2) of the N.I. Act, when it was known to the learned counsel that not only the issue stood decided by this Court but that it was also affirmed by the Supreme Court. The latter part, that is, the affirmation of the judgment of this Court by the Supreme Court was brought to my notice by Mr Kalra. To be noted that the learned counsel appeared before the single Judge and on his own admission was involved with the proceedings in the Supreme Court. Despite which, the judgment of the Supreme Court was not placed on record on a specious plea that it was not available on the internet. A little effort would have demonstrated otherwise as the judgment could be obtained by visiting the official site of the Supreme Court, i.e., www.supremecourtofindia.nic.in on the same day. In all this precious Court time was lost. It is in these circumstances, I feel constrained to impose a cost of Rs 10,000/- in respect of each of the petitions. The cost shall be paid to the complainant
8. IMPORTANT CASES REFERRED
Dr. Ravichandran B.R. vs The Union Of India Represented By … on 27 July, 2022
State vs Sh. Jitender Kumar on 3 January, 2015
Unique I.D. : 02402R0326702013 vs Sh. Saurabh Agarwal on 4 February, 2014
Smt. Preetika Chawala vs Sh. Saurabh Agarwal on 4 February, 2014
Revision vs By Advs.Sri.S.Sanal Kumar on 22 July, 2011
written by kanishka choudhary intern under legal vidhiya
