Facts:

Six cases of check bounce i.e. Section 138 cases are currently pending. We are representing claimants in all,
and the accused is the same for all six cases. The accused has already admitted that he owes around 1 crore
to the claimant, and reached a settlement, for which the checks were issued. Since the past year, i.e. 4-5
dates set by the court, the accused has taken exemptions on medical grounds. In two of the cases, the
Metropolitan Magistrate has passed an order to verify the medical records. The accused has received
summons but the notices are pending due to the exemptions.

What can the judge do in such a scenario? Is there any provision for relief for the complainant? Can a Fee
Deposit Slip be asked for here?

What if he keeps on taking exemptions—what can the judge do? What is the provision for relief to
complainant in such a case. Can FDR be asked here? What other options are present.

Analysis:

As per the Code of Civil Procedure, 1908, Order XVII Rule 1, no adjournment can be granted more than
three times.

Procedure if parties fail to appear on day fixed.—Where, on any day to which the hearing of the suit is
adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of
the modes directed in that behalf by Order IX or make such other order as it thinks fit (Where the evidence
or a substantial portion of the evidence of any party has already been recorded and such party fails to
appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed
with the case as if such party were present).

The question to be answered is whether presence of accused is necessary in court—if Judge rules it is not
and accused is represented by advocate then Judge may dispense with his attendance—not even VC
attendance is required.

Bharatiya Nagarik Suraksha Sanhita also has a provision which states presence of accused may be dispensed
with if not necessary. Here, as the accused has already admitted to the amount being owed and thus his
presence may not be necessary.

Section 355. (1) At any stage of an inquiry or trial under this Sanhita, if the Judge or Magistrate is satisfied,
for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in
the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or
Magistrate may, if the accused is represented by an advocate, dispense with his attendance and proceed with
such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal
attendance of such accused.

(2) If the accused in any such case is not represented by an advocate, or if the Judge or Magistrate
considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him,
either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

Explanation.—For the purpose of this section, personal attendance of the accused includes attendance
through audio-video electronic means.
Under Section 317 of the Code, the accused himself can seek to be exempted from the case. However, it
appears there is no provision where the complainant can ask for the accused’s presence to be exempted.

Question: Can six cases under NI Act be clubbed together if they deal with common accused, complainant
and offence(s)?

Relevant Provisions

Bharatiya Nagarik SS/Cr.P.C.

Section 450/410

(1) Any Chief Judicial Magistrate may withdraw any case from, or recall any case which he has made over
to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry
or trial to any other such Magistrate competent to inquire into or try the same.

(2) Any Judicial Magistrate may recall any case made over by him under sub-section (2) of section 212/192
to any other Magistrate and may inquire into or try such cases himself

Negotiable Instruments Act

Section 142A. Validation for transfer of pending cases.—

(2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee
or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the
court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court
under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of
section 138 against the same drawer shall be filed before the same court irrespective of whether those
cheques were delivered for collection or presented for payment within the territorial jurisdiction of that
court.

(3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015 (26 of 2015),
more than one prosecution filed by the same payee or holder in due course, as the case may be, against the
same drawer of cheques is pending before different courts, upon the said fact having been brought to the
notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section (2)
of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015 (Ord. 6 of 2015),
before which the first case was filed and is pending, as if that sub-section had been in force at all material
times.

The intention of the legislature behind inserting section 142A becomes clearer when reading section
142A(3) which states if on the date of the Act coming into force there are multiple pending cases in different
courts by the same complainant to the same accused, then all the cases shall be transferred to the court
having jurisdiction u/S 142(2)

The word ‘shall’ has been used here also which makes it a mandatory provision and all the cheque bounce
cases filed by a complainant against the same drawer must be adjudicated upon and tried by the same court
where the first case filed is pending irrespective of where the subsequent cheques got bounced. While sub
section three does not deal with cases filed post the date of commencement of the Act, it can be assumed that
the intention is to reduce the burden on the courts and allow multiple suits to be clubbed into a single suit.

Case Laws
Gulshan Kumar Ahuja v. Veena Sharma (DelHC) 2003 [107 (2003) DLT 725]

Petitioner/complainant seeking a judgment against an Order by the Metropolitan Magistrate directing

clubbing of two complaint cases u/S 138 NI Act, since the offence constitutes a summons case. Both
cheques were presented on same date and were dishonoured due to insufficient funds. Post summoning,
accused filed application for consolidation of the cases u/S 219/220 Cr.P.C. Application allowed by MM
since parties are common.

DelHC gave judgment in favour of the impugned order, stating there is no prohibition in Cr.P.C. or the NI
Act against trial of two similar offences u/S 138, and that there is no reason why a joint trial of similar
offences cannot be ordered in summons cases.

K. Gobindarraj v. Ashwin Barai (MadHC) 1998 [1998 CRLJ 22]

Petitioner/accused seeking a judgment against JC I Magistrate taking cognizance of offences re: six cheques
being dishonoured via statement ‘payment stopped’ in a single complaint case u/S 138 NI Act. This was
affirmed by Principal Sessions Judge. Petitioner contended that a single complaint cannot be filed as each
dishonoured cheque gives rise to a separate cause of action, and that more than three offences cannot be
clubbed per S.219(1) Cr.P.C.

MadHC held that since all cheques were presented and dishonoured simultaneously, they consist of a single
transaction and as the offence is committed by the same accused, he can be charged together u/S 220(1)
Cr.P.C. It was held to be immaterial that the cheques were given separately.

M/s. India Sulphacid Industries Lt. v. M/s. Emmsons International Ltd. (DelhHC) 2011

Respondent/complainant had received 11 cheques from accused with the same date. Four of the cheques
were handed over for encashment and dishonoured with the statement ‘payment stopped by drawer’ on the
same date. Accordingly, complainant had filed a single complaint for all four cheques, which action was
validated by the Metropolitan Magistrate and upheld by the DelHC.

Morgan Tectronics Ltd. & Ors. v. State & Ors. (DelHC) 2010:

Petitioners/accused facing trial u/S 138 NI Act for six complaints by M/s. Super Enterprises, M/s. Shubham
Traders, M/s. Decent Electronics and M/s. Trading systems, all of which are partnership firms. First two
complainants share a common partner who has filed the complaint, while the latter two have filed separately.
The petitioners seek to be tried in a single proceeding for all six cases.

Application previously dismissed by Trial Court as six different cheques and causes of actions, and the
complainants are also different. It was held that the trial for the four complaints total filed by the partner to
the first two complainants can be dealt with jointly but as the complainants for the last two are different
there cannot be joint trial for them.

Sourav Enterprises & Anr. v. M/s Sainik Textile Mills Pvt. Ltd. (PunjHC) 2018, Sarabjit Singh & Anr. v.
Punjab Agro Foodgrain (PunjHC) 2017:

Both held that if the separate cases are already underway/at different stages/have progressed significantly,
then it is against the interests of justice to club the complaints.