What is the conundrum:
Multiple cheques get dishonoured as between same parties. Separate notices would
be issued. Separate complaints would be filed u/s 138 of N I Act.
cases come up for trial can all such cases be clubbed together?
This is a matter which engages trial courts umpteen times. Higher Courts have
given rulings by applying the principles of clubbing of charges. However there
is unresolved controversy in this area. There is no specific provision of law
regulating this aspect. Hence, the examination of this conundrum.
If there is mutual consent to club the cases can the Court hold joint trial
between same parties? If there is no consent whether the Magistrate can order
joinder of cases for ease of disposal? These are the aspects examined in this
What is the nature of offence?
Mode of trial depends upon the nature of offence as per provisions of the Code
of Criminal Procedure [for short Cr P C].
When the law was initially enacted, N I Act provided for one year's imprisonment
as per sec.138. It was Amended in 2002 and punishment was enhanced to two years
imprisonment w e f 06-02-2003. This is apart from fine.
In the Cr P C, the offences are classified as cognizable and non-cognizable.
Cases are classified as Summons case and Warrant case. Mode of trial depends
upon this classification. If punishment is less than two years duration, such
cases would not fall within the definition of warrant case.
Hence it would be summons case. Under sec.2[c] and [l] of Cr P C, define what is
cognizable and non- cognizable. Cognizable offence
means an offence for which, and
means a case in which, a police officer may, in accordance
with the First Schedule or under any other law for the time being in force,
arrest without warrant. Depending upon quantum of punishment, the offence is
categorized as cognizable or not, as borne out from the said I Schedule of Cr P
C. As a rule of thumb one can observe that if the punishment is less than three
years of imprisonment it would be not a cognizable offence.
Thus, be it as
originally enacted or after the Amendment of 2002, the offence of dishonour of
cheque is a non-cognizable offence as per provision of Cr P C. Hence Police
cannot entertain complaint for dishonor of cheque. The complaints would fall
within the category of summons case' under Cr P C, because it would not fall
within the category of warrant case', as the maximum punishment is for two
years' duration and does not exceed two years'.
How complaint u/s 138 is tried?
When sec.142 was first introduced by legislature it did not provide for the mode
of trial of complaints. The initial confusion about tenability or otherwise
of complaint to police and the charge sheet being filed by Police was cleared by
various High Courts by pointing out the non-obstante clause and the mode of
taking cognizance by private complaint only as per sec.142[a].
It was held
It is clear from the language employed in sec.142 of the Act that no Court
shall take cognizance of any offence punishable under S. 138 except upon a
written complaint made by the payee. It means that the payee has to file a
private complaint under S. 200, Cr.P.C. before the competent Magistrate and the
Police are not empowered to act upon a private complaint filed for an offence
under S. 138 of the Act.
I do not find any force in the argument of the learned
High Court Government Pleader that Sections 4 and 5, Cr.P.C. empower the Police
to entertain the complaint filed in respect of an offence under S. 138 of the
Act as the said provisions are not attracted in view of the above extracted
provisions of S. 142 of the Act.
High Courts also ruled that in view of the wordings of the sec.142 it would not
be permissible for Magistrate to refer the private complaint for police
investigation under sec.156(3) of Cr P C. Initially, there was also no
provision to decide the local jurisdiction of the Court for taking cognizance.
By the Amendment of 2002, Legislature made good the short fall in the
legislation regarding mode of trial and other incidental matters relating to
quick disposal of these cases of cheque dishonour.
This is what is found
mentioned in the objects and reasons:
The existing provisions in the Negotiable
Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been
found deficient in dealing with dishonour of cheques. Not only the punishment
provided in the Act has proved to be inadequate, the procedure prescribed for
the Courts to deal with such matters has been found to be cumbersome. The Courts
are unable to dispose of such cases expeditiously in a time bound manner in view
of the procedure contained in the Act.
As regards the mode of trial, sec.143, added by way of insertion by the
Amendment of 2002, reads thus:
143. Power of Court to try cases summarily:
- Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974) all offences under this Chapter shall be tried by a
Judicial Magistrate of the first class or by a Metropolitan Magistrate and
the provisions of sections 262 to 265 (both inclusive) of the said Code
shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this
section, it shall be lawful for the Magistrate to pass a sentence of
imprisonment for a term not exceeding one year and an amount of fine exceeding
five thousand rupees:
Provided further that when at the commencement of, or in the course of, a
summary trial under this section, it appears to the Magistrate that the nature
of the case is such that a sentence of imprisonment for a term exceeding one
year may have to be passed or that it is, for any other reason, undesirable to
try the case summarily, the Magistrate shall after hearing the parties, record
an order to that effect and thereafter recall any witness who may have been
examined and proceed to hear or rehear the case in the manner provided by the
- The trial of a case under this section shall, so far as practicable,
consistently with the interests of justice, be continued from day to day
until its conclusion, unless the Court finds the adjournment of the trial
beyond the following day to be necessary for reasons to be recorded in
- Every trial under this section shall be conducted as expeditiously as
possible and an endeavour shall be made to conclude the trial within six
months from the date of filing of the complaint.
Section 262 of Cr P C reads thus: 262.Procedure for summary trials. (1) In
trials under this Chapter, the procedure specified in this Code for the trial of
summons-case shall be followed except as hereinafter mentioned. (2) No sentence
of imprisonment for a term exceeding three months shall be passed in the case of
any conviction under this Chapter. The first proviso to sub-section (1) of
sec.143 enables the Magistrate to exceed the limit mentioned in Sec.262(2) of Cr
From the above it is now clear that the complaints under sec.138 are normally
triable as summons cases. Of course, discretion is given to the Magistrate to
try it as warrant cases, if he so decides, vide Second Proviso of subsection (1)
of sec.143. Rehear the case in the manner provided by the said Code
converting summons case as warrant case, vide sec. 259 of Cr P C. Under this
section the Magistrate may convert a Summons case to a Warrant case, if he finds
that there are reasons to do so.
The ordinary mode of trial is summary trial which means that it is by adopting
summons case procedure. Hence there is no question of framing a charge, unlike
in warrant case.
In Summons case what the Magistrate is expected to do is laid down thus by
sec.251 of Cr P C: 251. Substance of accusation to be stated:
When in a
summons-case the accused appears or is brought before the Magistrate, the
particulars of the offence of which he is accused shall be stated to him, and he
shall be asked whether he pleads guilty or has any defence to make, but it shall
not be necessary to frame a formal charge.
The next step is taking evidence.
is laid down thus in sec.254 of Cr P C:
254.Procedure when not convicted- (1)
If the Magistrate does not convict the accused under section 252 or section 253,
the Magistrate shall proceed to hear the prosecution and take all such evidence
as may be produced in support of the prosecution, and also to hear the accused
and take all such evidence as he produces in his defence.
The end of trial
results in acquittal or conviction. In this regard this is what Cr P C lays
down: 255.Acquittal or conviction:
- If the Magistrate, upon taking the evidence referred to in section 254
and such further evidence, if any, as he may, of his own motion, cause to be
produced, finds the accused not guilty, he shall record an order of
- Where the Magistrate does not proceed in accordance with the provisions
of section 325 or section 360, he shall, if he finds the accused guilty,
pass sentence upon him according to law.
- A Magistrate may, under section 252 or section 255, convict the accused
of any offence triable under this Chapter, which from the facts admitted or
proved he appears to have committed, whatever may be the nature of the
complaint or summons, if the Magistrate is satisfied that the accused would
not be prejudiced thereby.
Sub-section (3) of sec.255 clearly indicates that unlike in Warrant
case, the Magistrate can convict the accused for a proved offence irrespective
of the complaint or the issue of summons. In other words, the rigorous procedure
of Warrant case, where charge is framed, is not applicable in Summons case.
From the above provisions what can be inferred is that the provisions of law
would not debar joinder of complaints between same parties, for dishonor of
multiple cheques issued for same or similar transaction between them. Example,
cheques issued for instalments of hire-purchase or housing-loan, rent for same
premises, repayment of loan part by part and so on.
In a summons case the Magistrate records the plea' once the accused appears
pursuant to summons. Charge is not framed. Then the case goes for trial.
Why not club the cases?
It is trite that where the court has the jurisdiction/power to adjudicate, it
will necessarily have the incidental power therefor. Even earlier the
Supreme Court had applied the rule of incidental power of courts for situation
which did not provide for specific provision of law.
By quoting from
observations of yore, the Supreme Court held thus:
-- Justice Mookerjee observed at page 941 of the report as follows:
It may be added that the exercise by Courts, of what are called their
or incidental powers
is familiar in other systems of law, and such
exercise is justified on the ground that it is necessary to make its ordinary
exercise of jurisdiction effectual, because, when jurisdiction has once
attached, it continues necessarily and all the powers requisite to give it full
and complete effect can be exercised, until the end of law shall be attained
(See Works on Courts and their Jurisdiction section 27 and Wells on Jurisdiction
of Courts, Chapter XVII).
---If there was jurisdiction to do certain matter then all powers to make
that jurisdiction effective must be implied to the authority unless expressly
Specifically under criminal law this principle was applied by Supreme Court with
reference to the power of Magistrate u/s 156(3) of Cr P C to order fresh
investigation and to supervise investigation. It is laid down thus:
18. It is well-settled that when a power is given to an authority to do
something it includes such incidental or implied powers which would ensure the
proper doing of that thing. In other words, when any power is expressly granted
by the statute, there is impliedly included in the grant, even without special
mention, every power and every control the denial of which would render the
grant itself ineffective. Thus where an Act confers jurisdiction it impliedly
also grants the power of doing all such acts or employ such means as are
essentially necessary to its execution.
Thus there is ample legal authority to conclude that a Magistrate has got
implied powers for the purpose of exercise of jurisdiction.
There is limit for joining the charges in warrant cases because usually I P C
cases are tried as warrant cases. The reason is obvious. Each of the offence has
separate ingredient. Hence if cases are clubbed the proof ingredients would lead
to confusion, both for prosecution and for the defence. But in sec.138
complaints, the ingredients are common and as such there is no scope for
confusion at the trial as regards leading the evidence.
Therefore, to perpetuate
the legislative object of quick disposal, the Magistrate can exercise the
incidental power of a law court and club the cases of complaints for dishonor of cheques between same parties and arising out of a common transaction, leading to
issue of multiple cheques and its dishonor. Such clubbing will not cause any
disadvantage to accused or to the complainant. On the other hand even accused
will have advantage of less number of visits to the court. Instead of suffering
multiple convictions, once the cases are clubbed there will be single
In the light of the above principle of law, if both sides give consent, the law
relating to trial of summons case does not prohibit joinder of cases for the
purpose of trial, contrasted with joinder of charges which is regulated by law.
Even without consent, the incidental power of court to hold trial enables it to
club the cases, as that is advantageous for quick disposal, saving time of the
court in conducting trial and convenient to the parties also. The cause of
justice will not suffer, unlike in IPC cases.
Clubbing of charges under warrant case procedure is not totally prohibited by
law, though there are restrictions as to how many charges can be clubbed,
against which accused it is permissible and so on. Thus one cannot raise
eyebrows if in summons case the Magistrate orders clubbing the complaints as
Supreme Court of India had occasion to hold that the cheque dishonour cases
cannot be joined for the purpose of trial. Of course in this ruling the Court
did not examine the question in depth to come to the said conclusion.
relevant observations are quoted thus:
3. The main ground raised is that in terms of section 219 of the Code of
Criminal Procedure, 1973 since the offences took place during the period of one
year, the cases should be dealt together. Even if section 219 of the Code of
Criminal Procedure, 1973 was to apply, there have to be two trials because not
more than three cases can be tried together even if they occurred in one year.
4. The only other contention is that since one notice has been issued, four
separate trials should not take place and one trial should take place. There is
no provision of consolidation of cases in the Code of Criminal Procedure.
The question of clubbing the complaints for dishonour of 10 cheques given for
purchase of eggs and dishonoured was considered by Division Bench of Punjab High
Court and the clubbing was allowed by the Bench. The Bench found that there is
really only one offence, though multiple cheques were dishonoured.
The reason is
quoted for convenient reference:
Though, it is explicitly clear under the provisions of Section 218 (1) Cr.P.C.,
which provides that for every distinct offence of which any person is accused,
there shall be a separate charge and every such charge shall be tried
Section 220(1) Cr.P.C. states that 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. Section 220(1) and Section 223(d) Cr.P.C. constitute an
exception to Section 218 as well as Section 219 (2) Cr.P.C. Since Section 220 Cr.P.C.
is an enabling provision, therefore separate trials in respect of the offence
charged are not barred. However, where series of acts are so connected together
forming same transaction, accused can be tried in one case by the Court.
light of the fact that in the present situation all the ten cheques have been
simultaneously presented to the banker on the same day and dishonour so effected
on the same very day for all the cheques, regarding which a consolidated notice
has been issued calling upon the drawer to make good the payment of these
cheques, does not suffer from the vice of joinder of many offences in one trial.
It is after the expiry of the period of the receipt of the notice, Verma Neenu
2013.11.29 10:08 I attest to the accuracy and integrity of this document
Chandigarh prescribed under Section 138 (c) of the Act, offence under Section
138 of the Act is deemed to have been committed. Thus by all means, the facts
disclose as constituting only one offence and it cannot be said that ten
offences have been committed by the accused and therefore, Section 219 Cr.P.C,
does not come into play.
In another case, the High Court of Punjab & Haryana allowed clubbing of 8 cases
of cheque dishonour between same parties by holding that the Offence
under Section 138 of the Act in respect of eight cheques can be held to be
offences committed in the course of same transaction. Section 219 (1) of the
Code refers to identical offences committed on different dates during a span of
twelve months. It permits joinder of those charges provided they are offences of
the same kind.
The Delhi High Court has also taken similar view in respect of multiple cheques
between same parties.
Even before the introduction of sec.143 of N I Act, in a case where 16 cheques
were involved between same parties, the Madras High Court had allowed single
prosecution on the reasoning that the same constituted single transaction and
hence permissible under sec.219 of Cr P C.
In the decided cases the question was not examined from the point of view of
sec.143 of N I Act as enacted and mentioned above. The distinction of trial of
warrant cases and summons cases as per Cr P C was also not noticed. Arguments
assumed that framing of charge is essential for the case. On that basis the
question whether cases of dishonor of multiple cheques between same parties
would be same transaction or not was considered and decided.
It is submitted that if correct provision of law is applied, the Magistrate can
club the common cases and conduct trial without any legal hurdle. Before
introduction of sec. 143, under the regime of Cr P C, the cheque dishonor cases
would be triable as Summons Case, as already noticed at the beginning of this
article. Now in view of sec.143 of the N I Act, the summary trial would be by
following the procedure of summons cases as already examined previously.
incidental power of the Court, and there being no prejudice to both parties, the
Magistrate can order clubbing the cases of cheque dishnour between same parties
and dispose of the same. This would contribute for the cause of quick disposal
of these cases, as expected by legislative provision contained in sec.143(3) of
N I Act.
Written By: M.V.Shanker Bhat
- Sec.2-(w) summons-case means a case relating to an offence, and not
being a warrant-case ; (x) warrant-case means a case relating to an
offence punishable with death, imprisonment for life or imprisonment for a
term exceeding two years;
- Section 142 of Negotiable Instruments Act 1881: Cognizance of
offences:Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),-(a) no court shall take cognizance of any
offence punishable under section 138 except upon a complaint, in writing,
made by the payee or, as the case may be, the holder in due course of the
cheque;(b) such complaint is made within one month of the date on which the
cause of action arises under clause (c) of the proviso to section
138:Provided that the cognizance of a complaint may be taken by the Court
after the prescribed period, if the complainant satisfies the Court that he
had sufficient cause for not making a complaint within such period;(c) no
court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate
of the first class shall try any offence punishable under section 138.
- H.Mohan v.State of Karnataka(1992)73 Comp.Cas 560 Kar.
- K.Mahadevan v.Y.Venkatesh, (1992) 3 A.L.T. 634. Jagarlamudi Durga Prasad
v. State of A.P.(1993)76 Com Cas 339[AP].
- Dabur India Ltd v. K R Industries, AIR 2008 SC 3123, at page 3129.
- Commissioner of Income Tax v. Bansi Dhar, AIR 1986 S C 421 at p.424.
- Sakiri Vasu v. State of U P, A I R 2008 SC 907, at page 909.
- Vani Agro Enterprises vs. State of Gujarat, CRIMINAL APPEAL NO(S).587-590
OF 2010 decided on 05-09-2019
- Charashmi Kumar Talwani vs. Malhotra Poultries, Cr Mis C No.M27622/12
decided on 22-10-2013.
- Ashutosh Humnabadkar v. Continental Device India Ltd, Cr M C 1184/2014
decided on 28-01-2015.
- Ambica Plastopack P Ltd v. State, Crl MC 2698/11 etc decided on
01-11-2013. Unique Infoways P Ltd v. MPS Telecom P Ltd, Crl M C 4672/15 etc
decided on 14-03-2019.
- Manjula v. Colgate Palmolive India Ltd, Crl OP 21432/2002 decided on
- (3) Every trial under this section shall be conducted as expeditiously
as possible and an endeavour shall be made to conclude the trial within six
months from the date of filing of the complaint.
, B.A.B.L., Advocate, Mangaluru