ORDER
T. Ch. Surya Rao, J.
1. Since the parties are same and as common questions of law are involved in all these petitions, they can be disposed of together.
2. The factual matrix necessary for better understanding of the matter and for an effective adjudication of the same may be set forth hereinbelow thus.
3. The first respondent herein is the complainant and the petitioners herein are the accused in as many as ten cases in C.C. Nos. 60, 61, 63 to 69 and 108 of 2001 filed under Section 138 of the Negotiable Instruments Act (‘the Act’ for brevity) before the VIII Metropolitan Magistrate, Vijayawada. The complainant is a Registered Company having been registered under the provisions of the Companies Act, 1956. It manufactures and sells automobiles, tyres, tubes and flaps. The first accused is a partnership firm and the second accused is its Managing Partner it is alleged, inter alia, in the complaint that the accused purchased tyres, tubes and flaps from time-to-time from the complainant-Company on credit basis under various invoices and issued cheques in discharge of the amounts due under the said invoices. As many as 30 cheques, drawn on Bank of Baroda, had thus been issued against the invoices on various dates as detailed, inter alia, in the complaints in a tabular form. Those cheques were presented for Collection on 15.5.1999 with Bank of India. Governorpet, Vijayawada, the complainant’s Banker. However, under a single intimation dated 17.5.1999, the Bank informed the complainant about the dishonour of the cheques with the endorsement ‘payments stopped by drawer’. The complainant, therefore, got a single legal notice dated 26.5.1999 issued to the accused informing, inter alia, the dishonour of all the cheques and demanded the payment within 15 days from the date of receipt of that notice. The accused having received the said notice got a reply dated 7.6.1999 issued to the Counsel of the complainant. The defence set forth in the reply is not germane for the present purposes. Thereafter, the complainant, as aforesaid, filed ten complaints limiting three cheques per each complaint specifying, inter alia, that since the purchases were made by the accused under different invoices and since separate cheques were issued in discharge of the liability under each of the invoices, complaints were filed for dishonour limiting three cheques per complaint.
4. Pursuant to the summonses issued in the criminal cases, the accused appeared before the Court. The trial in the cases was commenced and P. W. 1 was examined on behalf of the complainant-in-chief after having taken time for cross-examination of the witness, the accused filed 9 petitions, under Section 158 of the Code of Criminal Procedure (‘the Code’
for brevity) seeking discharge from nine out of ten cases mentioning, inter alia, that inasmuch as a single cause of action had arisen in respect of all the 30 dishonoured cheques and as all of them arise out of the same transaction, filing different complaints would cause grave prejudice to the accused besides harassment.
5. The Trial Court dismissed all those petitions. The revisional Court going by the fact that the accused were examined under Section 251 of the Code and thereafter one witness was examined on the side of the complainant-in-chief, the accused should not plead for discharge at that stage, dismissed all the revision petitions. The petitioners as aforesaid are assailing those orders.
6. Mr. P. V.R. Sarma, learned Counsel appearing for the petitioners contends, that there has been a single cause of action for all the 30 cheques and one complaint ought to have been filed in respect of all the 30 cheques. The learned Counsel contends further that series of cheques have been given in the course of the same transaction and, therefore, even if more offences than one are alleged to have been committed, the accused can be charged with and tried at one trial for all such offences. The learned Counsel further contends that 10 cases have been filed only to harass the accused and in each case if the accused were to be convicted and should he be sentenced separately he would have to undergo ten years of imprisonment as the maximum sentence of imprisonment extends up to one year under Section 138 of the Act. The learned Counsel appearing for the first respondent, on the other hand, contends that there is no illegality in having filed 10 different complaints and it is in accordance with the Section 219 of the Code
7. In view of the said contentions the following points could arise for my determination
(1) Whether a single cause of action has arisen in respect of all the cheques and, therefore, they together constitute a single transaction?
(2) Whether all the alleged offences have been contained in the course of same transaction?
(3) Whether conducting separate trials is an illegality and would result in serious prejudice to the accused?
8. Apropos the first point it is appropriate for brevity and better understanding of the matter to consider Sections 138 and 142 of the Act, the relevant provisions in the context. They may be extracted insofar as is relevant for the present purposes, hereunder thus:
“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/or 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 extend to one year 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 fifteen 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 or other liability’ means a legally enforceable debt or other liability.
“142. Cognizance of offences :–
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974)
(a) —————————————-
(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 :
(c) —————————————-
(Emphasis is mine)
9. A perusal of both the provisions shows that when a cheque is drawn by a person on his account for the discharge of any debt or liability and if the cheque is dishonoured by the Bank for want of sufficient funds, the drawer shall be deemed to have committed an offence. Although the dishonour of the cheque by the Bank itself is an offence, the offence becomes complete only when the essential requisites enjoined under the Clauses (a) to (c) of the proviso appended to the Section 138 of the Act are complied with when the cause of action is said to have arisen vide Sadanandan Bhadran v. Madhavan Sunil Kumar, . of its judgment, the Apex Court held thus :
“On a careful analysis of the above section it is seen that its main part creates an offence when a cheque is returned by the Bank unpaid for any of the reasons mentioned therein. The significant fact, however, is that the proviso lays down three conditions precedent to the applicability of the above section and for that matter, creation of such offence…..”
10. Further a complaint in writing should be filed by the complainant within one month from the date on which the cause of action has arisen under Clause (c) of the proviso appended to Section 138 of the Act. It is not germane in the context to consider the limitations contained in Clauses (a) and (c) of Section 142 of the Act. The following essential ingredients would emerge from the above provisions (1) The cheque is drawn on an account maintained by the drawer; (2) It is issued by the drawer in discharge of the debt or other liability; (3) It is a legally enforceable debt or liability; (4) It is presented by the payee within the period of six months of its validity, whichever is earlier; (5) That cheque is dishonoured for want of sufficient funds in the account or it exceeds the arrangement; (6) A requisite legal notice in writing is
issued demanding payment covered by the said cheque within 15 days from the date of receipt of the said notice; (7) There is default on the part of the drawer to pay the amount within 15 days from the date of receipt of the demand notice; and (8) The complaint is filed within 30 days from the date of cause of action. The above essential ingredients shall be discernable from the complaint in one form or the other. All the necessary ingredients set forth supra together constitute the bundle of facts, which are necessary to be proved in order to maintain the claim by the complainant, although it is said that the cause of action arises under Clause (b) of Sub-section (1) of Section 142 of the Act, when the drawer of the cheque fails to make the payment within 15 days of the receipt of the requisite legal notice issued by the complainant.
11. It is well settled by now that a cause of action is a fasciculus of essential facts which the party seeking relief is obliged to prove in order to claim the relief against the opposite party. In other words, the party gets a right to sue the other party for the relief. It means every fact, which if traversed would be necessary for the party to prove in order to support his right or claim. Vide N. Narayana Murty v. Ganga Raju, AIR 1958 AP 451 and ABC Laminart Private Limited v. A.P. Agencies, Salem, . In Sadanandan Bhadran’s case (referred to supra) in para 7, the Apex Court held thus :
“In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) ’cause of action’ means every fact which it is necessary to establish to support a right or obtain a judgment. Viewed in that context, the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act :
(a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured:
(b) that the cheque was presented within the prescribed period:
(c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and
(d) that the drawer failed to make the payment within 15 days of the receipt of the
notice.
If we were to proceed on the basis of the generic meaning of the term ’cause of action’ certainly each of the above facts would constitute a part of the cause of action,”
12. The question arose for determination in that case was as to whether dishonour of cheque on each occasion of its presentation gives rise to a fresh cause of action within the meaning of Section 142(b) of the Act. The Apex Court held that Clause (b) of Section 142 gives a restrictive meaning and, therefore, no successive causes of action would arise, as and when the cheque is represented.
13. In view of the presumption engrafted under Section 138 of the Act, of course the burden is upon the accused to show that the cheque is issued not in discharge of the debt or other liability. Among the bundle of facts to be proved, the existence of a legally enforceable debt is a sine qua non for maintaining the claim. Having regard to the facts, the complainant in these cases must invariably establish the purchase of tyres, tubes and flaps under each invoice, the existence of debt under it and its enforceability legally. Obviously, the purchase transactions under each invoice is separate having taken place on different dates. There has been no inter-connection whatsoever in between one invoice and the other. Therefore, the transaction under each invoice is separate, a fortiori separate cheques having been issued in
discharge of the debts under each invoice. It may be that someof the facts like the presentation of the cheques on one date, dishonour of the same on one date, intimation of the same by the Bank order a single memo to the complainant, and the complainant issuing a single notice demanding payment under all the dishonoured cheques are common in all these cases. Nonetheless, the purchase transaction under each invoice and issuance of the cheque in discharge of the debt under the said invoice must invariably be proved separately in each case. Therefore all these separate transactions cannot be lumped together which might embarrass the accused in his defence and consequently result in serious prejudice to the accused. Under the circumstances, there is every force in the contention of the complainant that the cause of action could not be one and the same for all the cheques inasmuch as the cause of action does not alone mean the failure on the part of the accused to make the payment covered by the dishonoured cheques within 15 days of the receipt of the requisite legal notice issued by the complainant and it invariably includes all other essential ingredients that need be proved by the complainant to sustain the claim as set forth supra. It cannot, therefore, be heard to say that a single cause of action has arisen and all the cheques together constitute a single transaction under the facts and circumstances of these cases. For the above reasons, I am of the considered view that each transaction under each invoice being separate, issuance of cheque in discharge of the debt under the said invoice constitutes a separate offence.
14. Turning to the second point the learned Counsel appearing for the petitioners seeks to place reliance upon a judgment of the Madras High Court in K. Govindraj v. Aswhin Barai, 1(1999) Current Criminal Reports, 294, to drive home the point that one complaint should have been filed. That was a case where the respondent filed a private complaint for an offence under Section 138 of the Act on the basis of six dishonoured cheques given on various dates in different months but within a period of 12 months. As requested by the accused all the cheques were presented in the Bank together on one date and they were returned on one date with an endorsement “payment stopped”. When it was sought to be contended that the complaint was filed in violation of Section 219 of the Code, the Madras High Court was of the view that although different cheques were given on different dates, the presentation of all the cheques formed same transaction and inasmuch as demand was made by the respondent for the payment of the amount by giving one lawyer’s notice, the accused might be charged and tried at one trial for several offences because the series of acts are so interlinked or inter-connected together so as to form the same transaction of dishonouring the cheques on a single day.
15. The learned Counsel further seeks to place reliance upon a judgment of the Punjab and Haryana High Court in Anita v. Anil K. Mehra, 1996(1) Crimes 412 (HC). That was again acase where a single complaint was filed when 10 cheques were issued for Rs. 2,066-66 paise per each cheque in discharge of debt of Rs. 20,6667- on account of the loan advanced. A single notice was issued calling upon to pay the amount covered by the cheques when they were bounced with endorsement “exceeds arrangements”. On identical facts, another person by name Santosh Kumari preferred another criminal complaint in respect of 9 cheques each for Rs. 2,066-66 paise against the respondent. A third complaint was also filed by one Mr. Sangita against the respondent in respect of 10 cheques each for Rs. 1,550/-. It was urged in each of the complaints more than 3 cheques are alleged to have been issued while Section 219 of the Code shows that when a person is accused of more offences than one of the same kind committed within the space of 12 months, he can be charged and tried at one trial for any
number of them not exceeding three. It was held that because as per the allegations specific amount was due although different cheques were given, it was one transaction and to state that there has to be a separate complaint with respect to each cheque ‘hat was dishonoured will not be correct and Section 219 of the Code, therefore, would not be a bar to the peculiar facts of the case.
16. In Swarnalatha v. Chandramohan, II (1996) BC 298=1996(3) Crimes 283, a Division Bench of Kerala High Court held that when three cheques were drawn on different dates and for different amounts but presented together for payment and were dishonoured, a single notice was sent by the complainant to the drawer; the general rule is that every distinct offence of which a person is accused, there shall be a separate charge and every charge shall be tried separately and that Section 219 of the Code is an exception to the general rule and under Section 219 even the cheques had been issued for different amounts which might entail different punishments as other conditions laid down in Sub-section (2) thereof are satisfied, the cases in respect of three cheques could be tried jointly. The Bench was of the view that because it is a procedure law, the main question to be considered is whether the accused is seriously prejudiced by that and by adopting that procedure, the accused is not likely to be prejudiced as it would avoid multiplicity of cases.
17. In Tiruchandoor Muruhan Spinning Mills (Private) Ltd. v. Madan Lal Ram Kumar Cotton and General Merchants, I (2001) BC 769=2001(3) Criminal Law Reporter 390, a Single Judge of the Karnataka High Court held that the provisions of Section 219 of the Code are not applicable to the proceedings under Section 138 of the Act. That was a case, here a single complaint was filed in respect of dishonour of 10 cheques and one notice was issued, the Karnataka High Court held that a cause of action arose only after the service of notice and, therefore,’ it was advantageous to the accused if a single complaint is lodged against him.
18. Following the judgment of the Madras High Court in K. Govinda Raj’s case (referred to supra) a learned Single Judge of this Court held in N. Lakshmanan and Others v. Sri Shanmukha Cotton Traders, 1998(2) ALT (Crl.) 494 (A.P.), that even though six cheques were given by the accused to the complainant on different dates, all those acts of giving cheques were emerged together to form the same transaction, namely, the presentation of all these cheques together on one particular day as requested by the accused and as the demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer’s notice, the provisions of Section 220 of the Code would attract, repelling the contention that the complaint was hit by Section 219 of the Code. That was again a case where as many as six cheques were given for different amounts towards the part payment of the amount due under a Kama of Rs. 63,32,702-20 paise.
19. In view of the abovecleavage of opinion it needs an intrinsic and critical examination of the law on the point. There is no gainsaying that the principles of Sections 218 to 223 apply not only to warrant cases but even to summons cases also. Notwithstanding the same it is expedient to examine the law on the point in Emperor v. San Dun, Vol. 2 Crl.L.J. 739 F.B., it has been held thus :
“The word “charge” is not defined in the Code. In Section 242 the word “accused” is used in connection with the particulars of the offence being stated to the accused person, but it is used in the same sense as the word “charged” in the ordinary parlance. Possibly the explanation of the use of the former instead of the latter word
is that it was considered that the former would emphasise the fact that no formal charge was necessary. The concluding words of the section appear to contemplate that in a summons trial there is a charge of an offence, although it is not necessary to embody it in writing in accordance with the provisions of Sections 221, 222 and 223 of the Code.
I would say in answer to the question referred that Section 233 of the Code of Criminal Procedure and the sections mentioned in it apply to trials of summons cases under Chapter XX of the Code.”
20. Following the said judgment, in U.N. Biswas v. Emperor, AIR 1914 Cal. 603, it was held as follows :
“The fact that the trial has taken place as in a summons case does not exclude the application of Section 233, Criminal P.C.”
21. In IndramaniPradhan and Ors. v. Chanda Bewa, AlR 1956 Orissa 191, it was held in para 4 thus ;
“Though in a summons case there is no formal charge, it is now well settled that the accusation made against the accused and intimated to him during his examination under Section 242, Cr.P.C., takes the place of a formal charge. It is also well settled that the principles of Sections 233 to 239, Cr.P.C., apply not only to warrant cases, but also to summons cases.”
The Orissa High Court followed King Emperor’s case (referred to supra).
22. It is thus obvious that the provisions contained in Para-B of Chapter XVII of the Code would also apply to the cases where the trial should be conducted by adopting summons procedure.
23. It would be expedient in this context to look at the scheme of Chapter XVII of the Code. This Chapter is split up into two sub-heads, namely, form of charges and joinder of charges. Sub-head ‘A’ which deals with form of charges comprises Sections 211 to 217 and sub-head ‘B’ which deals with joinder of charges comprises Sections 218 to 224. Since subhead ‘A’ mainly deals with the form and contents of charges, we are not concerned with the same in this case. Sub-head ‘B’ which deals with joinder of charges is germane in the context for consideration. Section 218 provides that every distinct offence of which any person is accused, there shall be a separate charge. It thus lays down the normal rule to be followed in every case. But it also provides that this would be subject to the exceptions contained in Sections 219, 220, 221 and 223. The first three provisions relate to the framing of charges against a single person. Section 219 deals with the trial of a person for the offences of the same kind not exceeding three committed within the space of 12 months from the first to last of such offences. Sub-section (2) thereof elucidates the expression ‘offences of the same kind’. Section 220 permits trial of a person for more offences than one it they are so connected together as to form the same transaction. It is therefore hedged with a limitation that the offences shall be committed in the course of the same transaction. Thus, under this provision if the connection between the various offences is established, the limitation engrafted under Sub-section (1) of Section 219 both as regards the number and period during which the offences are alleged to have been committed will not apply. Sub-section (2) of Section 220 deals with the cases of criminal breach of trust or dishonest misappropriation of property and falsification of accounts. Sub-section (3) thereof deals with the cases where an offence falls
within two definitions. Sub-section (4) thereof deals with an act in which number of acts are alleged against an accused person, different combinations of which may constitute different offences. But under Sub-section (5) thereof, the provisions of Section 71 of the Indian Penal Code have been specifically delved. Section 221 deals with the cases where the nature of the acts complained are such that it is doubtful that what offence has been committed. Section 222 deals with the major and minor offences. All these sections as aforesaid, deal with the various offences committed by a single person. Section 223, however, deals with plurality of persons who can be tried together. In other words, joint trial of more than one person. We are not concerned with this section in this case.
24. While Section 218 speaks of distinct offences, Section 219 speaks of offences of the same kind. Section 220, however, speaks of more offences than one committed in the course of the same transaction. The expression, distinct offence has been succinctly elucidated by the Apex Court in Banwari Lal v. Union of India, AIR 1960 SC 1260, which may be extracted hereunder thus :
“The expression ‘every distinct offence’ must have a different content from the expressions ‘every offence’ or ‘each offence’ A separate charge is required for every distinct offence and not necessarily for each separate offence.
The question is, what is meant by ‘every distinct offence’? ‘Distinct’ means ‘not identical’. It stresses characteristics that distinguish ‘two things not being the same’. Two offences would be distinct if they be not in any way inter-related. If there be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not.”
25. The expression ‘offences of the same kind’ has been sought to be elucidated in Section 219 itself under Sub-section (2) thereof. If the offences are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law they are the offences of the same kind.
26. The expression ‘Same transaction’ has not been defined under Section 220. Subsection (2) thereof, which pertains to the offences of criminal breach or dishonest misappropriation of property and falsification of accounts however elucidates the same. The section reads that if a person commits more offences of criminal breach of trust or dishonest misappropriation of property and also commits 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 offence. It is obvious thus each of the offences of criminal breach of trust is a separate offence and it is distinct and separate from the offence of falsification of accounts although the person commits one or more offences of criminal breach of trust which are of the same kind, he commits in the same transaction the other offences of falsification of accounts for the purpose of facilitating or concealing the commission of former offences. Therefore, the expression ‘same transaction’ shall have to be understood in that view of the matter. The illustrations given under the section would exemplify the instances. It is thus obvious that it is not plurality of offences that are committed, which are of the same kind, is the criterion but those offences shall have to be committed in the course of the same transaction. Whether or not the series of acts are so connected as to form the same transaction would depend upon the facts and circumstances of each case.
27. In C.N. Krishna Murthy v. Abdul Subban, AIR 1965 Mysore 128 at page 136, in para 29 it has been held thus :
“The expression ‘the same transaction’ very wisely, is not defined in the Code. In the very nature of things it is incapable of definition…. In order that a series of acts be regarded as same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or commonality of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned. If any of these things happens and the whole process is begun over again, it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which inter-links a series of acts so intimately as to form the same transaction is different in each case…. Mere doing the same thing or similar things continuously or repeatedly does not amount to a same transaction, There is a clear distinction between a same transaction and a similar transaction.”
28. In N.M. Narayana Setty v. Court of Munsif, AIR 1966 Mysore 243, it has been held thus:
“The principal test laid down is unity of purpose or design and the continuity of action, The series of acts committed must be connected together in one way or the other.
29. In Sohoni’ s Code of Criminal Procedure 19th Edition, Vol. 3 at page 2582 a passage has been mentioned, which may be extracted hereunder thus :
“The words “same transaction” connote that the acts are so related to one another in point of purpose, or as cause and effect, or as principal and ancillary that they constitute one transaction or a continuous action. This continuity of action is not in the sense that one act follows the other without any connection, but in the sense of intimate connection between the different acts. There must be a commonality of purpose and a concert.
Accused persons committing offences of the same kind but separately, may not be regarded as having committed those offences in the course of the same transaction.”
30. In Aftab Ahmad v. Hakim Mohammad Yar Khan, , the Apex Court held thus :
“Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every such charge should be tried separately. There is no doubt that the object of Section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in Sections 234. 235 and 239.
Held that the incidents related in the evidence left no manner of doubt that from the
moment the accused started from the Police Station, he committed a series of acts involving killing, injuring people unlawfully confining others and extorting money from one of them. As the series of acts attributed to the accused constituted one transaction in which the offences were committed the case fell squarely within the purview of Section 235. The fact that the offence of extortion was committed at a different place and at a different time did not any theless make the act as one committed in the course of the same transaction and therefore the misjoinder of the alleged distinct offences of murder, extortion and wrongful confinement was permitted by the exception contained in Section 235.”
31. In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and Anr. , the Apex Court held in para 27 thus.
“According to this provision there must thus be a connection between a series of acts before they could be regarded as forming the same transaction. What is meant by “same transaction” is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court, which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is however not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction….. Now a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions.
That was a case where the first accused was charged with the offences punishable under Sections 1210-B, 409, 477-A and 471 read with Section 467 of the Indian Penal Code and the second accused was tried for the offences punishable under Sections 120-8, 409 read with Sections 109, 477-A and Section 471 read with Section 467 of the Indian Penal Code. When it was sought to be contended that it was a case of mis-joinder of charges, it was held by the Apex Court at page 1864 that it was not the case of mis-joinder of charges or multiplicity of charges.
32. In Banwarilal’s case (referred to supra) in para 12 the Apex Court held thus :
“The obtaining of money for each bill supported by false inspection note, amounted to the offence of cheating in pursuance of the conspiracy. All such individual offences, on the basis of the various bills, were of the same kind as the single offence of obtaining the total amount as a result of the presentation of the various bills and in view of Section 71, I.P.C., the accused could not be punished for more than one of such offences.
The Apex Court upheld a single charge for the offence of cheating in view of the conspiracy alleged in the case to commit such offence.
33. This Court in G. Latchanna v. Gramamurthy, (1979) II An.W.R. 355, has also laid down the similar indicia.
34. Following Cheemalapari Ganeswara Rao’s case the Apex Court in Balbir v. State of Haryana, , held thus :
“For several offences to be part or the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same of different offences “committed in the course of the same transaction”.
That was a case in connection with murder of one person two different cases, one pursuant to police investigation and the other pursuant to a private complaint accusing two different persons as perpetrators of the crime were put before the Sessions Court, it was held that the offence alleged in the two cases cannot be said to have been committed in the course of the same transaction.
35. Very recently in Mohan Baitha v. State of Bihar, (1979) II An.W.R. 355, the Apex Court held thus :
“It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and commonality of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not”.
In that case the offences punishable under Section 406 and 304-8 of the Indian Penal Code are held to have been committed in the course of the same transaction.
36. The following indicia would emerge from the conspectus of the decisions referred to supra.
(1) In order that a series of acts to be regarded as same transaction, they must be connected together in some way as for instance by proximity of time, unity of place and unity or commonality of purpose or design.
(2) There must be continuity of action, namely, following up of some initial act through all its consequences or incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned.
(3) Merely doing of same filing or similar thing, continuously or repeatedly does not amount to same transaction,
(4) The acts must relate to one another in point of purpose or as cause and effect or as principal and ancillary to constitute one transaction or continuous transaction.
In fact, there can be no rigid or straitjacket formula that can be evolved to apply uniformly
in all cases. Having regard to the fact that the Code has not defined the expression ‘the same transaction’, it is an indication that it is a pure question of fact to be decided with reference to the facts and circumstances of each case. The above indicia would be of some help or guidance to be considered after having had the holistic view of the facts of a particular case. It is, however, not necessary that every one of these elements shall co-exist for a transaction to be regarded as the same transaction.
37. As discussed by me supra, the series of offences committed in this case, which are of the same kind, cannot be said to have been committed under the facts and circumstances of this case in the course of the same transaction. One is neither the cause nor the effect of the other. One is neither the principal nor the ancillary of the other. Although the cheques have been dishonoured on one and the same day and one notice was issued demanding payment of the amounts covered by the dishonoured cheques, those two acts cannot make, in my considered view, what are otherwise independent transactions as the same transaction. As dishonour of each cheque by itself is an offence by issuing a common notice, all such offences of the same kind cannot be construed as a one single offence or as offences committed in the course of the same transaction. There is no charge of conspiracy in this case. No common design or purpose is discernible from the facts. No connection whatsoever can, therefore, be established in between various transactions. For these reasons the cheques issued in these cases cannot be said to have been issued in the course of the same transaction.
38. As regards the third point, there is no mandatory provision of law laying down that where separate trials can be held under the general rule, the Court must hold joint trial if the accused does not fall within one of the provisions that permit holding joint trial. The rule of framing charges is that unless otherwise indicated every distant offence should be subject matter of separate charge unless the accused is covered by one or the other of the four sections vide In re Osman AH, .
39. The object of Section 218 of the Code is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in Sections 219, 220, 221 and 223 vide Aftab Ahmad v. Hakim Mohamad Yar Khan (referred to supra).
40. However, in Ranchhod Lal v. State of Madhya Pradesh, , a three-Judge Bench of the Apex Court held at page 1250 in paras 15 and 16 thus :
“(15)…..This again is an enabling provision and is an exception to Section 233, Cr.P.C. If each of the several offences is tried separately, there is nothing illegal about it. It may also be mentioned that the total number of items charged for the four cases exceeded three.
(16) Lastly, reference was made, on behalf of the appellant to Section 235, Cr.P.C. and it was urged that all these offences were committed in the course of the same transaction and. therefore, they should have been tried at one trial. Assuming, without deciding, that these offences could be said to have been committed in the course of the same transaction, the separate trial of the appellant for certain specific offences is not illegal. This section too is an enabling section.”
41. That was a case of criminal breach of trust. According to the facts, the various acts
of criminal breach of trust which formed the basis of the convictions, took places within a period of few months from November 19, 1955 to February 13, 1956. When it was urged that the appellant should have been charged for committing criminal breach of trust with respect to the total amount he had misappropriated and the appellant should have been awarded only one sentence, the Apex Court repelled the said contention and in para 19 it was held thus :
“We are, therefore, of opinion that there had been no illegality in the Court’s trying the appellant in four cases and in not ordering the various sentences awarded in different Sessions Trials to run concurrently with the sentences awarded in Sessions Trial No. 358 of 1961.”
42. This judgment has been followed by the Apex Court in V.N. Kamdar and Another v. Municipal Corporation of Delhi, 1973 SCC (Crl.) 783, and in para 10 it has been held thus;
“The normal rule under the Criminal Procedure Code is to try each accused separately when the offence committed by him is distinct and separate. The provisions of Sections 233 to 239 would indicate that joint trial is the exception. In State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and Another, , this Court said that separate trial is the normal rule and joint trial is an exception when the accused have committed separate offences.”
43. In view of the authoritative pronouncement of a three-Judge Bench of the Apex Court, there is nothing illegal in trying the cases separately although the offences are said to have been committed in the course of the same transaction. All this is meant to save the accused from embarrassment and the provisions contained in Part B of Chapter XVII are only enabling provisions. The infraction thereof is neither illegal nor would vitiate the trial.
44. The learned Counsel for the petitioners contends that if the accused were to be convicted in all these cases separately, 10 years’ imprisonment should be inflicted upon them in 10 cases as the maximum sentence under Section 138 of the Act to be awarded is one year as against the sentence of one year to be awarded, should he be tried for all these offences in one case in a single trial. In fact, such a contention has been repelled by the Apex Court in Ranchhod Lal’s case (referred to supra) inasmuch as sentence shall depend upon the nature of the offence and the gravity of the same.
45. For the foregoing reasons, there is nothing illegal in having filed ten different complaints and, therefore, these petitions must fail and are dismissed.