Section 219 Cr.P.C and
section 138 OF NEGOTIABLE INSTRUMENTS Act: Interplay
Whether a complaint for
more than three bounced cheques through a single legal demand notice
maintainable?
One
aspect that often creates ambiguity in the minds of litigants as regards
complaints filed u/s 138 of Negotiable Instruments Act( In short NI Act”), as
to how many cheques could be the subject matter of a single complaint and/or of
a single demand notice u/s 138 of Negotiable Instruments Act and whether, there
is a limit of cheques forming part of a single complaint under the NI Act. The
ambiguity stems from the provisions of section 219 of Cr.PC (Corresponding to
section 242 of BNSS). The general understanding is that only three (3) dishonoured
cheques, only, could form part of a single complaint u/s 138 of Negotiable
Instruments Act, as per the principles of Section 219 of Cr.PC (Section 242 of
BNSS). Therefore, before proceeding further, the contents of section 219 of
Cr.PC which is materially similar to section 242 of BNSS may be reproduced
herein:
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 or of any special or local law.
Provided that, for the purpose of
this section, an offence punishable under Section 379 of the Indian Penal Code
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.”
Moreover,
if section 220 of Cr.PC is perused, it clearly postulates that if series of
acts are connected together to form the same transaction, the same may be
subject of one trial only.
Section
220 of Cr.PC is reproduced herein for ready reference:
220.
Trial for more than one offence-
(1) If 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 is charged with
one or more offences of criminal breach of trust or dishonest misappropriation
of property as provided in sub-section (2) of section 212 or in sub0section (1)
of 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 offences.
(3) If the acts alleged
constitutes an offence falling, within two mor 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 constitutes 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.
Taking
into consideration case laws the Delhi High Court, recently in a matter
captioned as Pawan Dhanpatrai Malhotra Vs Mahender Khari Crl.M.C.
4074/2024 has set right the ambiguity, if any.
Reliance by the
petitioner/Accused
(i) The Supreme Court in Vani
Agro Enterprises Vs State of Gujarat & Anr, (2021) 16 SCC 132
(ii) Delhi High Court in Gaurav
Mittal Vs State of NCT of Delhi 2023 SCC OnLine Del 1528,
In
the aforesaid judgments it is held that mere issuance of a single/common notice
by the complainant cannot suffice for not following the mandate of Section
219 of the Cr.P.C.. It was submitted that as the cheques were of different
dates, therefore, not more than three cheques can be consolidated into one
complaint.
Reliance
by the Respondent
Delhi High Court:
(i) Sharma Contracts (India) Pvt Ltd Vs State
& Anr 2012 SCC OnLine Del 310;
(ii)
Unique Infoways Pvt. Ltd. & Ors. v. M/s MPS Telecom Private Limited,
2019:DHC:1661;
Karnataka High Court
(iii)
A Adinarayana Reddy v. S. Vijayalakshmi & Anr.;
Karnataka High Court in Criminal Petition bearing No. 5909 of 2023 and
GUJARAT
HIGH COURT
(iv)
U Turn Vs State of Gujarat, 2024 SCC OnLine Guj 1427
The
aforesaid reliance was placed to buttress that the offence is completed only
when notice under proviso 'b' to Section 138 of the NI Act is given
by the holder of the cheque to the drawer, and the drawer thereafter fails to
make the payment within a period of 15 days of the receipt of the notice. It
was submitted that it has been consistently held that where a single notice has
been served on the drawer, it would be considered as a single offence and not
multiple offences and, therefore, the rigours of Section 219 of the
Cr.P.C. will not be attracted.
Section
138 of the NI Act provides for the penalty in case of dishonour of cheque for
insufficiency of funds in the account of the drawer of the cheque. It reads as
under:
"138. Dishonour of
cheque for insufficiency, etc. of funds in the account.
Where
any cheque drawn by a person on an account maintained by him with a banker for
payment of any amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability, is returned
by the bank unpaid, either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account by an agreement made
with that bank, such person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act, be punished with
imprisonment for [a term which may be extended to two years], or with fine
which may extend to twice the amount of the cheque, or with both:
Provided that nothing
contained in this section shall apply unless--
(a) the cheque has been
presented to the bank within a period of six months from the date on which it
is drawn or within the period of its validity, whichever is earlier;
(b)
the payee or the holder in due course of the cheque, as the case may be, makes
a demand for the payment of the said amount of money by giving a notice; in
writing, to the drawer of the cheque, [within thirty days] of the receipt of
information by him from the bank regarding the return of the cheque as unpaid;
and
(c)
the drawer of such cheque fails to make the payment of the said amount of money
to the payee or, as the case may be, to the holder in due course of the cheque,
within fifteen days of the receipt of the said notice.
Explanation.--For
the purposes of this section, "debt of other liability" means a
legally enforceable debt or other liability."
What
therefore follows is that on dishonour of the cheque, the payee or holder in
due course of the cheque has to make a demand for the payment of the cheque
amount by giving a notice in writing to the drawer of the cheque within thirty
days of the receipt of information by him from the bank regarding the return of
the cheque as unpaid. In terms of Section 142 (1)(b) of the NI Act,
the complaint for an offence under Section 138 of the NI Act can be
filed only upon the cause of action arising under clause (c) of the proviso
to Section 138 of
the NI Act, that is, where the drawer of the cheque fails to make the payment
of the amount of the cheque to the payee or the holder in due course of the
cheque, within fifteen days of the receipt of the notice in terms of Proviso
(b) to Section 138 of the NI Act.
The
Delhi High Court, while delving in the aforesaid aspect in Pawan Dharampal
(Supra) had referred to and relied upon, a judgment reported as Ambica
Plastopack Pvt Ltd & Anr Vs State & Anr, 2013 SCC OnLine Del
4416, the Delhi High Court has reiterated therein that the cause of action for
filing a complaint under Section138 of the NI Act is the service of notice
under Section 138 of the NI Act and not the dishonour of cheques.
Therefore, Section 219 of the Cr.P.C. shall not apply where one notice for
dishonour of cheques is issued.
In Unique
Infoways Pvt Ltd (supra),
the Delhi High Court has observed that there being Six (6) cheques and as all
the six cheques, which were the subject matter of the complaint therein, had
been given in relation to the same transactions, therefore, Section 219 of
the Cr.P.C would not be an impediment to the summoning of the accused in a
single complaint.
In
Adinarayana Reddy (supra), the Karnataka High Court had considered
the issue, if a single complaint could be maintainable for multiple cheques (more
than 3) issued by the accused for the same cause of action. It was held that as
the cheques are issued for the same cause of action and a common notice was
served on the accused, a single complaint for dishonour of multiple cheques was
maintainable.
in U-Turn
(supra), the Gujarat High Court had rejected the petition of accused, after
pacing reliance on the judgment of Karnataka High Court in Adinarayana
Reddy (Supra).
Delhi
High Court in Pawan Dhanpatrai Malhotra (Supra) after placing
reliance on the aforesaid judgments has observed that Vani Agro Enterprises
(Supra) was a case where the complainant had filed four complaints and was
seeking consolidation of the same and the Supreme Court had observed that there
is no provision in the Cr.PC providing for consolidation of cases. It was
further held in Pawan Dharampal (Supra) that Gaurav Mittal
(Supra) cannot be a binding precedent, being only an interim order.
Significantly,
the Delhi High Court, in Pawan Dhanpatrai Malhotra (Supra) has
held as under:
“20. I must however, also take
note of the Constitution Bench judgment of the Supreme Court in Expeditious
Trial of Cases Under Section 138 of NI Act, 1881, In re, (2021) 16 SCC
116, wherein, the Supreme Court, while upholding the course adopted by the
Supreme Court in Vani Agro Enterprises (supra), recommended
that a provision be made in the NI Act to the effect that a person
can be tried in one trial for offences of the same kind under Section 138 of
the NI Act in the space of 12 months, notwithstanding the restriction in Section
219 of the Cr.P.C. However, it did not consider the case, where post
the dishonour of more than three cheques, a single notice of demand is sent by
the payee or the holder in due course of the cheque to the drawer of the
cheque. On the other hand, it further held that there is no ambiguity in Section
220 of the Cr.P.C. in accordance with which several cheques issued as part
of the same transaction can be the subject matter of one trial”.
As
the respondent in Pawan Dharampal Malhotra (Supra) had alleged that the
cheques in question were given pursuant to a single transaction and a common
notice was served on the petitioner on the dishonour of these cheques.
Therefore, applying the above precedents, it was held that no fault can be
found in a single complaint filed by the respondent on the dishonour of the
cheques.
On
the basis of the aforesaid judicial precedents, it is now established that so
long as, more than three cheques issued leads to or constitutes a single cause
of action and formed part of a common legal notice u/s 138 of Negotiable
Instruments Act, the single complaint, against all such cheques forming part of
a legal notice, shall be perfectly maintainable. Thus, merely, because, the
cheques in question are more than three (3) in number, Section 219 of Cr.PC
shall not invalidate the complaint. As a matter of fact, the judgments/precedents
as set out above, clearly reflects that there is no impediments in preferring a
single complaint regarding dishonour of more than Three (3) cheques, if the
same forms part of a common notice u/s 138 OF Negotiable Instruments Act. It is
more so, as the cause of action, being bundle of facts, leading to a final
cause of action, shall emerge, in complaint u/s 138 NI Act, only, when the
legal notice is received by the prospective accused and despite expiry of
Fifteen (15) days thereof, the demand notice is not complied with and it is
only at that stage that the cause of action finally could arise and hence no
embargo could be cast in preferring a compliant u/s 138 of Negotiable
Instruments Act, so long as more than Three (3) cheques are part of a single
legal demand notice u/s 138 of Negotiable Instruments Act leading to a
composite and final cause of action.
------
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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