IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(Crl.).No. 123 of 2009()
1. DAVID P.M @ RAJAN
... Petitioner
Vs
1. STATE OF KERALA,REP BY PUBLIC PROSECUTOR
... Respondent
2. HYDROSE, S/O.SYED MUTHAMMED
For Petitioner :SMT.C.S.SHEEJA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :30/01/2010
O R D E R
P. BHAVADASAN, J.
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Tr.P.(Crl). No. 123 of 2009
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Dated this the 30th day of January, 2010.
ORDER
This is a petition filed under Section 407 of the
Code of Criminal Procedure seeking to have S.T. 1191 of
2006 pending on the file of the Judicial Magistrate of the
First Class, Kolenchery transferred to the file of the
Judicial Magistrate of the First Class, Adimaly.
2. Petitioner is the accused in S.T.1191 of
2006 before the JFCM, Kolenchery for having committed
offence punishable under Section 138 of the Negotiable
Instruments Act. The second respondent herein is the
complainant. Allegation against the petitioner was that as
part payment of the consideration of sale of a Margin
Free Market, petitioner had issued a cheque for
Rs.4,97,885/- to the second respondent. The cheque on
presentation bounced for want of funds. Suit notice was
Tr.P.(Crl.).123/2009. 2
issued. Since the amount was not paid, prosecution was
launched.
3. It is pointed out by the petitioner that the second
respondent is the first accused in C.C.661 of 2007 pending
before the Judicial Magistrate of the First Class, Adimaly.
That was on the basis of Crime No.165 of 2006 for offence
punishable under Sections 406, 420, 467, 468 and 477A
read with Section 34 of the Indian Penal Code. The crime
was registered on the basis of a private complaint filed by the
petitioner, which was sent for investigation under Section 156
(3) of Cr.P.C.. Annexure A2 is the final report in the said
case.
4. According to the petitioner, the entire dispute
revolves around the purchase of Margin Free Market, which
was owned by the second respondent. Petitioner points out
that the total consideration of the Margin Free Market was
Rs.15,35,000/-. Petitioner had paid advance of
Tr.P.(Crl.).123/2009. 3
Rs.6,54,500/- on 9.1.2006, that is, on the same day on which
the agreement for transfer was executed. For the balance
consideration two cheques, namely, one for Rs.2,00,000/-
dated 14.1.2006 and another for Rs.4,97,885/- dated
31.1.2006 drawn on the Federal Bank, Adimaly were handed
over to the second respondent. In fact the petitioner gave
Rs.2,00,000/- to the second respondent.
5. Petitioner says that it was realised by him while
running the Margin Free Market that there was considerable
deficiency in the stock and there was no explanation.
According to the petitioner, the difference comes to about
Rs.2,75,831/-. That resulted in compromise being entered
into between the petitioner and the second respondent. As
per the settlement, the second respondent agreed to prepare
the stock list and price list. Petitioner claims that he had
given Rs.1,45,000/- to the second respondent on 9.3.2006.
The second respondent had agreed not to encash the
Tr.P.(Crl.).123/2009. 4
cheques. He also agreed not to present the cheque for
Rs.4,97,885/-. When summons was received from the
Magistrate Court, Kolenchery, the petitioner entered
appearance. Later on he obtained bail. The petitioner had
earlier moved Crl.M.C.600 of 2008 before this Court for
quashing Annexure A1 complaint on various grounds. This
Court, by order dated 17.11.2009 dismissed the petition,
which is marked as Annexure A4.
6. According to the petitioner, Annexure A1
complaint is pending before the JFCM, Kolenchery.
Petitioner would say that the claim of the second respondent
with reference to the cheque said to have been drawn by him
depends to a great extent on the result of the other case at
Adimaly. It was pointed out by the petitioner that the
employee of the second respondent had manipulated the
records and falsified the accounts.
Tr.P.(Crl.).123/2009. 5
7. Ultimately, it is contended that both the
proceedings are inter-linked and they may be tried by the
same court. Accordingly, it is prayed that S.T.1191 of 2006
pending before the JFCM, Kolenchery be transferred to
JFCM, Adimaly.
8. Learned counsel appearing for the second
respondent very vehemently opposed the petition. It is
pointed out by him that the prosecution initiated by him under
Section 138 of the NI Act was in 2006. Till date, the
petitioner had done nothing in the matter. There is nothing
common in the two cases. According to him, they are to be
independently tried depending on the evidence adduced in
each case. He therefore opposed the application for
transfer.
9. There is nothing to show that there is any
connection between the two cases. The claim of the
petitioner herein that if C.C.661 of 2008 ends in conviction,
Tr.P.(Crl.).123/2009. 6
that would be a strong defence for him in S.T.1191 of 2006.
There is nothing to show that common issues arise for
consideration. There is also nothing to show that the
decision in one case will have any persuasive effect on the
other case. No grounds necessary to consider transfer is
available in the present case. As rightly pointed out by the
learned counsel for the second respondent, on going through
the records, no similarity is found between the two cases.
Some of the evidence may be common in both the cases.
Therefore, there need not be a joint trial. The evidence to be
adduced in both the cases are entirely different and are not
mutually dependent.
This petition is without merits, and accordingly it is
dismissed.
P. BHAVADASAN,
JUDGE
sb.