Judgment:
ORDER
A.K. Datta, J.
1. The instant Revisional Application by the petitioner-accused (hereinafter referred to as accused) under Sections 401 and 482 of the Code of Criminal Procedure, 1973 (hereinafter shortened into Code) is directed against the order dated 28-11-89 passed by a Metropolitan Magistrate at Calcutta in G.R. Case No. 1735 of 1985 before him.
2. The accused had been prosecuted for alleged offences punishable under Section 420, I.P.C., in G.R. Cases Nos. 1735 and 1736 of 1985 on the basis of the petition of complaints filed by the complainants therein before the learned Additional Chief Metropolitan Magistrate at Calcutta under Section 156(3) of the Code.
3. The allegations in the aforesaid two cases, in short, is that the accused by making false representation to the complainants therein had induced them to supply him different quantity of cotton yarn valued at Rs. 1,16,006/- and Rs. 1,21,330.60 p. only respectively, on the plea of making payments therefor, in the circumstances stated in the petition of complaints, towards the latter part of November, 1984. But the accused has not paid therefor to any of the complainant as yet, and has thereby cheated them in respect of the aforesaid amounts. In the petition of complaint by Rajendra Kumar Jain on behalf of M/s. Napco Textiles, it had further been alleged therein that the accused had issued a cheque to the complainant for the sum of Rs. 1,16,006/- only which had been dishonoured by the Bank from time to time.
4. Since the offennces in the aforesaid two cases are of the same kind, the accused had filed a petition before the learned Magistrate for analogous trial of the two cases in terms thereof for the reasons stated therein, which was opposed on behalf of the State. The learned Magistrate by his impugned order dated 28-11-89 had rejected the aforesaid petition filed by the deceased on the ground that the cause of action of the aforesaid two cases are different, and as such it is not a fit case for trial of the same analogously.
5. Being aggrieved by the order so passed by the learned Magistrate, the accused has come up before this Court in revision for appropriate relief in terms thereof.
Upon perusal of the petition of complaints filed by the complainants in the aforesaid two cases as also the chargesheets submitted by the police after completion of investigation therein, it clearly appears that the accused had been prosecuted for an alleged offence punishable under Section 420, I.P.C., on the allegations made therein, shortly stated above. Even though an allegation has been made in one of the aforesaid two cases that the Cheque issued by the accused had bounced, he does not appear to have been prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act. He has been prosecuted in the aforesaid two cases only for an alleged offence punishable under Section 420, I.P.C., on the allegation of cheating the complainants therein, in the circumstances stated in the petition of complaints. The alleged offences in the aforesaid two cases had allegedly been committed by the accused towards the latter part of November 1984, much within the space of twelve months from one another. The accused had presumably filed the relevant application before the learned Magistrate for trial of the aforesaid two offences at one trial in terms of Section 219(1) of the Code which runs as follows:-
'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.'
6. It would be pertinent to note in this context that 'offence' under Section 2(n) of the Code means:-
'offence' means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871.'
7. The question which would at once crop up for consideration, in the aforesaid circumstances, is whether the offences in the aforesaid two cases are of the same kind or not, committed within the space of twelve months from the first to the second of such offences. The relevant petition of complaints in the aforesaid two cases, such as they are, would at once indicate that the offences alleged therein is the 'act' of non-payment by the accused for the goods supplied to him by the complainants therein which they were induced to supply to him on the representations that they would be paid for the articles supplied. In one case, however, a cheque is stated to have been issued by the accused to the complainant which had been dishonoured. But that, ipso facto, does not seem to make any difference as regards the kind of offences allegedly committed by the accused in the aforesaid two cases. The offence allegedly committed by the accused in the aforesaid two relevant cases is cheating punishable under Section 420, I.P.C., committed in the circumstances alleged in the relevant petition of complaints. Having regard to the allegations made in the petition of complaints by the complainants as also the charge-sheets submitted by the police after completion of investigation, there could be little mistaking that the offences alleged committed by the accused therein are clearly of the same kind within the meaning of Section 2(n) of the Code, committed much within the space of twelve months from one another. That being so, the accused could very well be chared with and tried therefor at one trial (the number of the offences not exceeding three) in terms of Section 219(1) of the Code. The petition filed by the accused- petitioner therefor should clearly have been allowed by the learned Magistrate in the aforesaid circumstances.
8. In view of the discussions above, the learned Magistrate appears to have gone grievously wrong in rejecting the relevant application filed by the accused for being tried at one trial for the alleged offences punishable under Section 420, I.P.C., in the aforesaid two relevant G.R. Cases Nos. 1735 and 1736 of 1985 before him.
9. In view of the discussions above the Revisional Application succeeds. The impugned order passed by the learned Magistrate be accordingly hereby set aside. The learned Magistrate is hereby directed to try the offences allegedly committed by the accused in the relevant G.R. Cases Nos. 1735 and 1736 of 1985 at one trial in terms of Section 219(1) of the Code, which is neither likely to cause prejudice to any of the parties.
10. Since the aforesaid two relevant cases appear to be pretty old, which had also remained stayed in the view of the stay gratned by this Court, the learned Magistrate is directed to proceed with the trial and dispose of the same, as expeditiously as possible, preferably within a period of six months from the date of communication of this order.
11. Let a copy of the order be forthwith sent to the court below.
12. Let xerox copies of the order be supplied to the learned Advocates for both the parties on usual undertaking.