IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.3.2011
The Hon’ble Mr. Justice A.ARUMUGHASWAMY
Criminal Appeal Nos. 701 to 729 of 2007
1. M/s.L.S.P.Agro Limited
rep. By Managing Director
Suramangalam Main Road
Salem 636 009
3. Selvakumar … Respondents
Criminal Appeals against the judgment of VI Metropolitan Magistrate , Egmore, Chennai in C.C.Nos. 10573/2001, 4277, 4278, 4279, 4280, 4281, 4487 to 4501, 4603 to 4607, 4613, 4614 and 4615 of 2002 dated 12.7.2007.
For Appellant:- Mr.A.Thiagarajan
for M/s.Sai,Bharath and Ilan
For Respondents:- Mr.R.Mahadevan
for Mr.S.Ravikumar for R1 and R2
These appeals arise out of the common judgment dated 12.7.2007 passed by the learned VI Metropolian Magistrate, Egmore, Chennai in C.C.Nos.10573/2001, 4277, 4278, 4279, 4280, 4281, 4487 to 4501, 4603 to 4607, 4613, 4614 and 4615 of 2002.
2. The accused in all these cases are common and the complainant is also common. These appeals have been filed challenging the acquittal of the respondents/accused by the trial court.
3. In all these cases, the prosecution has been launched by the complainant for the offence punishable under Section 138 of the Negotiable Instruments Act in respect of the alleged business transaction between the complainant and the accused party. There were 29 cheques issued by the accused for Rs.5 lakhs each which were presented for collection. Most of the cheques were dishonoured on the ground that there was no sufficient funds in the account of the accused and the rest of the cheques were dishonoured on the ground that there had been “stop payment” order issued by the account holder to the bank. The complainant issued a statutory notice as required under Section 138 of the Negotiable Instruments Act. The said notice was not complied with by the accused, which gave rise to the cause of action for filing 29 separate private complaints before the learned Magistrate. To put it otherwise, in respect of dishonour of each cheque and each cause of action a separate private complaint was launched. The learned Magistrate took cognizance of all the private complaints independently and issued summons to the accused.
4. When all the cases were taken up for trial, it is seen from the records that the accused as well as the complainant made a request to have a joint trial of all the 29 cases by clubbing them together. Accordingly, the learned Magistrate recorded evidence in common in all the 29 cases by way of joint trial and heard all the cases jointly and finally acquitted the accused in all the 29 cases by a common judgment. That is how as against the acquittal in each case, these appeals have been respectively filed before this court.
5. When the appeals were taken up for final disposal a doubt arose in the mind of this court regarding the correctness of the procedure followed by the trial court in clubbing all the 29 cases together and recording common evidence so as to deliver a common judgment. The only explanation as found in the judgment of the trial court is that the joint trial was conducted on the request made by the parties to the proceedings. In my considered opinion, the said procedure adopted by the trial court is illegal. Indisputably, all these 29 cases are relating to 29 separate private complaints upon which separate cognizance was taken. There is no provision either in the Code of Criminal Procedure or in the N.I. Act or elsewhere to club all the cases together and to record common evidence and deliver common judgment. It is settled law that the evidence relating to one case may not be relevant in the other case. Therefore, the evidence which is relevant in one case cannot be relied on in the other case for the purpose referred to in the other case. Thus, I have no hesitation to hold that the procedure adopted by the the trial court is not mere procedural irregularity, which is curable in law but an illegality which vitiates the entire proceedings. In this regard, I may refer to the judgment of this court in MANJULA VS. COLGATE PALMOLIVE (INDIA) LTD (2006 (5) CTC 303) wherein the Division Bench was called upon to consider the scope of Section 219 Cr.P.C. vis-a-vis Section 138 of the N.I.Act. In that case 16 cheques were presented for collection and the same were returned dishonoured for want of sufficient funds. But a single notice was issued demanding the cheque amounts. It was not complied with. In those circumstances, a single complaint was filed in respect of 16 cheques. When a plea was taken before the Division Bench that as per Section 219 Cr.P.C., there can be joinder of only three offences and not more than that, the Division Bench held that since all the 16 cheques pertained to the same transaction and since there was a single notice issued, Section 219 Cr.P.C. is not applicable. But in the case on hand though a single notice was issued, the prosecution was launched separately in each case. Therefore, the evidence should have been recorded in each case separately and each case should have been decided in accordance with law on the basis of the evidence to be let in in that particular case. But in this case, common evidence was recorded in all the 29 cases by clubbing all the 29 cases together which is not permissible in law. Further recording of common evidence and delivering common judgment is also not permissible. In such view of the matter, the entire trial conducted by the learned Magistrate stands vitiated.
6. Yet another illegality committed by the leaned Magistrate also needs to be considered. In this case, P.W.2 was examined on the side of the complainant and he was allowed to be cross examined by the defence. Long after that when the accused entered upon the defence, again they summoned the very same witness viz., P.W.2 for the purpose of examining him as defence witness despite the fact that the said witness had already been summoned and examined as prosecution witness. The trial court also without applying its mind allowed the said witness to be examined on defence side as D.W.2. The complainant was also allowed to cross examine him. This procedure is unknown to law. The witness cannot play dual roles one as prosecution witness and other as defence witness. Had there been anything to be elicited from P.W.2 by the defence in their favour or to prove certain documents, that could have been done when P.W.2 was cross examined by defence. Having allowed the accused to examine the very same prosecution witness as defence witness, here again the complainant who relied on the evidence of the said witness when he was examined as P.W.2, has cross examined him as D.W.2. This shows that the trial court was not clear about the procedure that has to be followed while trying a given case. This illegality committed by the trial court also cannot be cured. This mistake has been committed by the trial court at the time of recording the evidence. It is the exclusive responsibility of the judicial officer and there should not be any laches in the judicial proceedings. These are the basic and fundamental jurisprudence of the judicial proceedings in which there cannot be two opinions. Hence, this is also yet another reason why the judgment of the trial court needs to be set aside.
7. Before the trial court on the side of the complainant P.W.1 to P.W.4 were examined and Exs.P1 to P131 were marked. On the side of the respondents, D.W.1 to D.W.7 were examined and Exs.D1 to D13 were marked.
8. On the side of the complainant P.Ws. 1 to 4 have been examined along with Exs.P1 to P131 to prove the complaints. P.W.1 is the complainant. P.W.1 in his evidence would state that he is the officer in the Complainant company that Ex.P1 is the copy of the resolution passed by the company authorising him to prefer complaints; that the company supplied palm oil to the respondent/ accused company for Rs.11,50,37,000 and out of the said amount, for Rs.3,85,00,000 the respondent issued 77 cheques for a sum of Rs.5 lakh each that they presented the cheques on 25.11.2000, but the above cheques were returned on 22.03.2001 and the same was informed to the complainant on 27.03.2001. On 31.03.2001 again all the cheques were re-presented and the same also were returned to the complainant’s bank which was informed to the complainant by the bank vide letter dated 06.04.2001, which was received by the complainant on 10.4.2001 and on that cause of action, they issued lawyer’s notice on 16.4.2001 about the dishonour of cheques; that acknowledgements have been received on 2.5.2001. The first accused is the company. The second accused is the Managing Director of the Company. A3 is one of the Directors. The third accused has signed the cheuqes which is also evident from the evidence of D.W.2.
9. On the defence side, D.W.1 is the Accounts Manager of A1 company. D.W.2 Bank Manager in his evidence would state that A1 company is having accounts in his bank . D.W.3 is the Manager of the Lakshmi Vilas Bank who has been examined to speak about the other accounts maintained by the first accused viz., M/s.L.S.P. Agro Limited. D.W. 4 is the assessor, who assessed the the value of the properties. D.W.5 one Shanmugam and D.W. 6 the Director of the complainant company have been examined to speak about the lease agreement entered into between the complainant and M/s.L.S.P Agro Limited, which are not germane to the case. D.W.7 is the Head Clerk of the Magistrate Court, Egmore, who was examined to speak about the court seal affixed in Ex.P91 Fax message.
10.These are the relevant dates to decide the cause of action. However, since I have held that the trial conducted by the trial court by clubbing all the 29 cases together is not permissible in law and it is an illegality committed by the trial court which cannot be cured, the common judgment of the trial court is liable to be set aside and the matter has to be remitted back to the trial court for re-trial.
11. In the result, all these appeals are allowed and the common judgment of the trial court is set aside and the trial conducted by the trial court is hereby quashed by remitting the matter back to the trial court for re-trial. The trial court is directed to hold a simultaneous trial after affording sufficient opportunity to the parties and dispose of each case by means of separate judgment in accordance with law within three months from the date of receipt of copy of this order without granting any further time.
12. The parties shall appear before the Trial Court on 25.04.2011.
1. The VI Metropolitan Magistrate , Egmore,
2. The Public Prosecutor