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Judgment
Subhash B. Adi
These two appeals are filed by the complainant. Crl. A.No. 334/2011 is against the judgment in Crl. A. No. 426/2009 dated 3.12.2010 on the file of the Sessions Judge, Fast Track Court-X, Bangalore wherein the learned Sessions Judge reversed the judgment in C.C. No. 26496/2003 dated 21.4.2009 on the file of XX Addl. Chief Metropolitan Magistrate, Bangalore and had remanded the matter to the Trial Court. Crl. A.No. 605/2009 is against the judgment in C.C. No. 27472/2002 dated 21.4.2009 on the file of the XX Addl. Chief Metropolitan Magistrate, Bangalore questioning the acqittal of the accused.
In both the appeals, the complainant as well as the accused are common and the transaction is also one and the same. Hence, both the appeals are heard together.
The brief facts leading to these two appeals are that, appellant - complainant had filed a private complaint before the learned Magistrate in PCR No. 2221/2002 inter-alia alleging that the respondents herein had issued a Cheque bearing No. 108637 dated 20.11.2001 for a amount of Rs. . 73,45,000/- towards the discharge of debt for having purchased the gold TT bars from the complainant. On presentation of the said Cheque, it was returned dishonoured with an endorsement "funds insufficient". Thereafter, the complainant issued a legal notice to the accused. However, only some of the accused gave an untenable reply and the amount was not paid, as such, the complainant filed a private complaint.
The case of the complainant in C.C. No. 26496/2003 (old No. 4094/2002) was that the accused had issued a Cheque dated 16.5.2002 for Rs. .73,45,000/- and it was returned by the Bank with an endorsement "funds insufficient". At paras 7 and 8 of the complaint, complainant has stated as under:
The accused issued a Cheque No. 108637 dated 20.11.2001 for Rs. 73,45,000/-(Rupees Seventy Three Lakhs Forty Five Thousand only) in favour of the complainant drawn on Bangalore City Co-operative Bank Ltd., to clear his legal liability in part. The said Cheque was dishonoured for the reason "FUNDS INSUFFICIENT" - against this Cheque this Hon''ble Court was pleased to register a case in PCR No. 2221/2002 and the same has been registered in C.C. No. 26496/2003 and pending before this Hon''ble Court.
The accused sent a fresh Cheque for Rs. .73,45,000/- (Rupees Seventy Three Lakhs Forty Five Thousand only) along with a letter by hand delivery to the complainant Cheque being dated 16.5.2002 drawn on Bangalore City Co-operative Bank Ltd. to pay towards his liability in part.
It is the case of the complainant that, on account of dishonour of Cheque bearing No. 108637 dated 20.11.2001 for Rs. .73,45,000/-, accused had issued a fresh Cheque dated 16.5.2002 drawn on City Co-operative Bank Ltd. Bangalore for Rs. . 73,45,000/-.
It is not the case of the complainant that the Cheque which is the subject matter of C.C. No. 27472/2002 was a different transaction, but it is specific case of the complainant that when the said Cheque was dishonoured, a fresh Cheque was issued on 16.5.2002 and for which complainant had filed a private complaint in C.C. No. 26496/2003. Two Cheques relates to the same transaction. The second Cheque dated 16.5.2002 was a fresh Cheque and the said cheque is dishonoured. There is no new or fresh transaction, they are not separate transactions. As such, there was no reason for the complainant to prosecute both the matters when he admits that fresh Cheque was issued in view of the dishonour of the earlier cheque
Though the Trial Court conducted two separate trial tor both the matter, but after recording the evidence, found that the earlier transaction has merged in the issue of second Cheque and accordingly has acquitted the accused. in my opinion the Trial Court has rightly acquitted the accused in C.C. No. 27472/2002 against which Crl. A.No. 605/2009 is filed. Hence, there is absolutely no ground to interfere with the said judgment and the said appeal is liable to be dismissed.
In so far as the Cheque bearing No. 110265 dated 16.5.2002 for Rs. .73.45,000/- drawn on Bangalore Ciry Co-operative Bank Ltd. is concerned, it is the Cheque in view of dishonour of earlier Cheque and the complainant has rightly filed a complaint for the dishonour of the said Cheque. Though several allegations and counter allegations are made in the evidence, however, it is not disputed by both the counsel that the Trial Court in C.C. No. 26496/2003 has not recorded the plea of all the accused. Order sheet dated 17.9.2003 shows that plea of accused No. 3 alone was recorded.
Further, after recording the evidence, the Trial Court has recorded the reply of the accused Nos. 2 and 3 jointly u/s 313 of Cr.P.C. There is no provision u/s 313 of Cr.P.C. to record joint reply of the accused. Incriminating material against one accused may not be against the another. The incriminating material against the accused has to be put to the said accused individually u/s 313 of Cr.P.C. and a reply or explanation has to be given only by the said accused. Section 313 of Cr.P.C. does not enable the Court to record joint plea of the accused.
The Trial Court has eironeously recorded the joint plea of accused Nos. 2 and 3 u/s 313 of Cr. P.C. It has not also recorded the plea of the other accused. This is not an error committed by the parties but the error committed by the Trial Court. It is not known whether the other accused had an explanation or not, but an opportunity has to be given to each of the accused to give their explanation / reply u/s 313 of Cr. P.C.
In this case, the Trial Court, where the plea of all the accused was individually required, was to be recorded, has not recorded and the reply of the accused u/s 313 of Cr.P.C. has not been recorded. Hence, the procedure adopted by the Trial Court in disposal of the criminal case is vitiated.
The Appellate Court, having considered the same, found that the matter requires re-consideration by the Trial Court and accordingly, it has remanded the matter. It is against the said remand, the complainant is before this Court.
In view of the above finding, I find no reason to interfere with the judgment of the Appellate Court and accordingly, Crl. A.No. 334/2011 fails and is dismissed.
However, this matter pertains to the year 2002 though it is re-numbered as 2003. Therefore, earliest consideration is required. Hence, Trial Court is directed to dispose of C.C. No. 26496/2003 as early as possible not later than six months from the date of receipt of copy of this order. Both the parties to co-operate.
Order On Being Spoken To
These appeals were disposed off by order dated 13.13.2011. CrLA. No. 334/2011 arising out of C.C. No. 26496/2003 was dismissed, Crl. A. No. 505/2009 arising out of C.C. No. 27472/2002 was also dismissed.
The first case was tried in C.C. No. 27472/2002, however, on issue of fresh cheque for the same transaction, another case was filed in C.C. No. 26496/2003. The trial Court had acquitted the accused in the first case in C.C. No. 27472/2002 whereas it has convicted the accused in C.C. No. 26496/2003.
It is brought to my notice that, the Apex Court in identical circumstances in the judgment reported in 2008 (3) SCC 833 in the matter of Lalit Kumar Sharma vs. State of Uttar Pradesh and another, has held that in case of two complaints For the same transaction, the first complaint will survive and the second complaint ia liable to be dismissed. It is in this regard, the judgment which was passed on 15.12.2011 requires to be modified.
Crl. A. No. 334/2011 is hereby allowed and the judgment in C.C. No. 26496/2003 is set aside. Similarly, Crl. A. 605/2009 is also allowed, the judgment in C.C. No. 27472/2002 dated 21.4.2009 is set aside and the matter is remanded to the trial Court for fresh disposal in accordance with law. Accordingly, the judgments in both appeals stand corrected.
The parties are directed to appear before the trial Court on 02.02-2012