- (1.) THIS revisional application dated 29.6.07 under section 401 read with section 482 of Cr. PC challenges the order dated 1.2.07 passed by the Id. Judicial Magistrate, 4th Court, Burdwan in CR. Case No. 136 of 2003 under section 138 of NI Act whereby and where under the Id. Magistrate rejected the petitioner's petition praying for an order of dropping of the proceeding on the ground that the petition of complaint was not maintainable.
(2.) TWO points were canvassed before the Id. Magistrate and one of them was in relation to law of limitation. That point was also decided against the petioner. In this revisional application the said point has not been taken up. The only point that has been argued by the Id. Counsel for the petitioner is that in terms of the petition of complaint the complainant was allegedly given two cheques one bearing No. 762379 dated 20.12.02 and 7623380 dated 20.1.03 each amounting to Rs. 1,00,000/-. So far as the first cheque is concerned it was presented before the bank for encashment twice and on each of the occasions it was dishonoured. For the third time the said cheque bearing No. 762379 dated 20.1.03 the other cheque being No. 762380 dated 20.1.03 was also presented for encashment and both the cheques stood dishonoured. Then followed statutory notices and the amount covered under the cheques having not been made payment of the prosecution was launched. It is the submission of the Id. Counsel for the petitioner that unless two cheques were in relation to one and same transaction they cannot be clubbed together for the purpose of launching prosecution by single petition of complaint and it has not been stated in the petition of complaint that issuance of cheque on two different dates relates to one and same transaction. According to Id. Counsel for the petitioner the provision of section 218 Cr. PC cannot be attracted hereunder and there cannot be any joinder of charges in respect of two different transaction.
(3.) MR. Manjit Singh, Id. Counsel for the O.P. No. 1 disputes the submission and argues that it is not the case that two cheques were covered by two separate notices. Both cheques were presented on a single date i.e. 20.1.03 and both cheques having been stood dishonoured by the bank one common notice was issued to the petitioner covering both the cheques and in such circumstances, it cannot be said that the two cheques related to different transaction. My attention has been drawn to the decision of Rajsthan High Court in the case of Naresh Chander vs. State of Rajasthan and Anr., reported in 2000 Cr.LJ 5090. At paragraph 12 of the judgment it was observed by a learned Single Judge of that High Court that dishonour of seven cheques does not give rise to seven causes of action and though all the cheques were drawn on different dates the complainant presented all of them on a single date and all the cheques were bounced and statutory notice was issued for once covering all the transaction. This decision has been re by the Bombay High Court in the case of Rajendra B. Choudhuri vs. State of Maharashtra and Anr., reported in 2007 Criminal Law Journal 844 where it was observed that payee is not prevented from combining the causes of action by covering all the instances in a single notice and in such a case all the transactions covered by the notice would be regarded as a single transaction, permitting a single trial. Yet there is another Division Bench decision of the Madras High Court, namely, B. Raman and Ors. vs. Shasun Chemiclas and Drugs Ltd., reported in 2006 Criminal Law Journal 455, where it was observed that causes of action is not presentation of cheques nor mere dishounor, whereas the real cause of action is the non-payment of the cheque amount or non-compliance of the demand through the notice by the drawer within the statutory period. There is still another Division Bench decision of Palmolive (India) Ltd., reported in 2007(1) E Cr. N 314, where Their Lordships observed as follows: "In the case on hand, though the act of issuance of 16 cheques was on different dates, in view of the fact that a demand was made by issuing a common notice, the complaint cannot be said to be vitiated. To put it clear, though the giving of cheques by the accused to the complainant may be on different dates, all those acts of giving those cheques were merged together to form the same transaction viz. the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one Lawyer's notice and not several demands, we are of the view that the accused may be charged and tried at one trial for several such offences because the series of acts are so interlinked or inter-connected together so as to form the same transaction of dishonouring the cheques, therefore, it cannot be said that the complaint is vitiated." ;