ORDER

Instant petition has been filed assailing impugned order dated 15.10.2019 passed by learned Judicial Magistrate First Class, Court No. IV, Shimla whereby an application preferred by petitioner/accused under Sections 219 and 220 of Code of Criminal Procedure (in short ‘Cr.PC’) has been dismissed in Complaint No. 250 of 2017 titled as Ankush Arora vs. Saya Chauhan, rejecting the prayer of petitioner/accused to charge with and try the petitioner/accused together in two cases i.e. complaint No. 250 of 2017 titled Ankush Arora vs. Saya Chauhan and complaint No. 251 of 2017 titled M/s Fashion Point Boutique vs. Saya Chauhan.

2. For convenience, complainant and accused are being referred in this judgment as per their status in complaint.

3. Facts emerging from record in present case, in brief, are that both complaints have been filed by Ankush Arora i.e. complaint No. 250 of 2017 in individual capacity as Ankush Arora and second on behalf of M/s Fashion Point Boutique through its proprietor Ankush Arora i.e. complaint No. 251 of 2017 wherein Ankush Arora is also party as individual as Complainant No.2. According to Complaint No. 250 of 2017, accused Saya Chauhan had issued two cheques for Rs.1,50,000/- dated 10.5.2017 and Rs.1,98,000/- dated 10.5.2017 in order to liquidate her liability of financial assistance extended by complainant Ankush Arora by giving loan to her. As per Complaint No.251 of 2017 she had also issued three cheques amounting to Rs. 1,50,000/- dated 25.4.2017, Rs. 1,50,000/- dated 29.4.2017 and Rs.1,50,000/- dated 4.5.2017 for discharging her liability towards amount due on account of payment of goods purchased by her from shop of complainant i.e. M/s Fashion Point Boutique. On presentation, all these cheques have been dishonoured.

4. Two even dated separate legal notices, dated 14.7.2017, were sent by and on behalf of complainant to accused in terms of Section 138 of Negotiable Instrument Act (in short ‘NI Act’) which were received back unclaimed on 26.7.2017. One notice was with respect to two cheques issued by accused to liquidate her liability of financial assistance, whereas, another notice was with respect to three cheques issued by accused for discharging her liability for payment of goods purchased by her from shop of complainant.

5. Complainant preferred two separate complaints under Sections 138 and 142 of NI Act referred supra.

6. Accused preferred an application to charge with and try the accused at one trial in terms of Sections 219 and 220 of Cr.P.C. The said application was opposed by complainant by filing reply. After taking into consideration the averments made in application and reply and also submissions of learned counsel for parties, trial Court has rejected the application. It has also come on record, which has not been controverted, that similar application bearing Cr.MA No. 643/4 of 2018, filed earlier, was also dismissed by learned Chief Judicial Magistrate, Shimla on 19.5.2018 and the said order was never assailed by accused.

7. It has been contended on behalf of accused that offences alleged to have been committed by accused are arising out of one and same transaction i.e. to discharge her liability to pay some amount to complainant and alleged offences are of same kind alleged to have been committed within a space of 12 months and therefore, keeping in view the provisions of Sections 219 and 220 Cr.PC, accused is entitled to be charged with and tried at one trial. It has been contended on behalf of complainant that transactions involved in two complaints are entirely different and thus, cases arising thereto cannot be clubbed and tried together and more particularly, prayer for the same relief, for which application filed by accused, was dismissed, is not maintainable.

8. Chapter XVII of Cr.PC deals with ‘The Charge”. Part-B thereof provides for “Joinder of Charges”. Section 218 Cr.PC is the Rule, whereas Sections 219 and 220 Cr.PC are exceptions to the General Rule, which read as under:-

“218. Separate charges for distinct offences.- (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.

(2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223.

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 law:

Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860 ) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.

220. Trial for more than one offence-(1) If, in one series of acts 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.

(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in subsection (2) of section 212 or in sub- section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.

(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860 ).”

9. In Section 218 of Cr.PC word ‘shall” has been used by providing that for every distinct offence of which any person is accused, there, “shall” be a separate charge and every such charge shall be tried separately. Whereas in Sections 219 and 220 Cr.PC, word “may” has been used by providing that accused may be charged with and tried at one trial as provided in these Sections. The intention of Legislature is very clear that normal Rule is separate charges and separate trial for distinct offences, but subject to exception provided under sections 219, 220, 221 and 223 CrPC. But provisions of exceptions are not mandatory in nature wherein the Court has been granted liberty to charge with and try together or separately.

10. Provisions of Part B dealing with joinder of charges are to be read together harmoniously and not in isolation as they all deal with same subject matter and set out different aspects of it. (See Willie (William) Slaney vs. State of Madhya Pradesh, reported in AIR 1956 SC 116, Para 39).

11. It is a rule of construction that all the provisions of a Statute are to be read together and given effect to, it is, therefore, the duty of the Court to construe a statute harmoniously. ( See The State of Andhra Pradesh vs. Cheemalapati Ganeswara Rao and another reported in AIR 1963 SC 1850 para 28).

12. It has also been observed in Cheemalapati Ganeswara Rao’s case that separate trial is normal rule and joint trial is an exception.

13. In Chhutanni vs. State of Uttar Pradesh reported in AIR 1956 SC 407, it was possible for trial Court to prosecute and try the accused persons for two murders in the same trial as the offences were committed during same transaction but the Supreme Court has upheld the separation of trial by Sessions Court by observing that even though joint trial is permissible under Cr.PC, but, still there is no illegality or irregularity in holding the separate trials.

14. In Ranchhod Lal vs State of Madhya Pradesh reported in AIR 1965 SC 1248, it has been held by the Supreme Court that where, under Cr.PC, an accused may be charged with and tried at one trial for commission of the same kind of offences committed within a period of 12 months for any number of such offences not exceeding three, but has been tried separately, there is nothing illegal about it as provision for charging with and trying together is only an enabling provision and same view has been expressed with respect to offences committed in due course of the same transaction which may be triable at one trial but tried separately, by observing that Section dealing with such provision is also an enabling Section.

15. In Mohinder Singh vs. State of Punjab reported in AIR 1999 SC 211 also, the Supreme Court has held that provision of Section 220 Cr.PC for joint trial of different offences is only enabling provision and Court may or may not try all the offences together in one trial and it cannot be said that by trying separately the Court commits any illegality.

16. In view of aforesaid pronouncements and for language of Sections 219 and 220 Cr.PC, it is apparent that these Sections, as exceptions to general principle propounded in Section 218 of Cr.PC, are enabling provisions whereby two or more different offences may be tried together subject to confirming the ingredients required for that as provided in these Sections, but charging with and trying together by Court in these Sections is not mandatory and these previsions do not prohibit separate trial for different offences committed by an accused. The Court is at liberty to charge with and try the accused under Sections 219 and 220 Cr.P.C in a single trial or in different trials, as normal Rule is separate trial for different and distinct offences committed by accused.

17. In a case under NI Act, cause of action to file a complaint arises when the accused fails to make the payment of amount of money to payee/holder in due course of cheque within 15 days of receipt of notice issued within 30 days of dishonour of cheque. Prior to aforesaid period, there is no cause of action to complainant to prefer a complaint under Section 138 of NI Act. Different cheques, may be issued for discharging the liability, arising out of one and same transaction, are separate entities and dishonour of each and every cheque gives a right to complainant to issue notice to drawer in terms of Section 138 of NI Act and on failure to make payment within period prescribed in Section 138 of NI Act entitles the complainant to file a complaint with respect to such dishonour of cheque. Dishonour of different cheques and non-payment of that amount after receipt of notice constitutes a different offence. Therefore, complainant has right to file and maintain separate complaint for dishonour of each and every cheuqe on failure to make payment by payer after receipt of notice under Section 138 of NI Act.

18. The payee may combine the cause of action by covering all instances of dishonour of cheque in a single notice and prefer a single complaint against the accused. In a complaint under Section 138 of NI Act, transaction for commission of offence is date of issuance of cheque, presentation thereof and issuance of notice of dishonouring of cheque, and therefore, issuance of cheques on different dates, and dishonour of such cheques on presentation on different dates, leading to issuance of separate notices on such dishonour, at no stretch of imagination, can be termed to be a single transaction attracting the provision of Section 220 of Cr.PC.

19. In present case, Notice of Accusation has already been put to accused in both complaints and complainant has already combined three cheques in one case and two cheques in another case and has filed only two complaints with respect to five cheques and liability of accused in both cases is different in nature as in one case cheques are stated to have been issued to discharge the debt of financial assistance provided by an individual, whereas, in another case cheques are stated to have been issued for discharging the liability towards the purchase of goods from sole proprietorship concern.

In view of facts and circumstances of case and aforesaid discussion, I find no merits in petition and no illegality, irregularity or perversity in the impugned order and therefore, petition is dismissed being devoid of any merit.

Petition dismissed.

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