IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 160 of 2007()
1. K.K.MARY, W/O.K.P.RAMAN,
... Petitioner
Vs
1. K.MOHANAN, S/O.KUNHUKUNHU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :19/01/2007
O R D E R
R.BASANT, J
------------------------------------
Crl.M.C.NO.160 Of 2007
-------------------------------------
Dated this the 19th day of January, 2007
ORDER
The petitioner is the defacto complainant in a prosecution for
the offences committed under Section 468 and 471 I.P.C. That case is
pending before the learned Judicial Magistrate of the First Class-II,
Sulthanbathery. The alleged forgery is committed in respect of a
cheque leaf. This case was earlier pending before the learned Judicial
Magistrate of the First Class-I, Sulthanbatheri. But for administrative
reasons it was made over to the court before which it is now pending.
2. In respect of the allegedly forged cheque, there was a
prosecution initiated under Section 138 of the N.I Act. That case was
pending before the Judicial Magistrate of the First Class-I,
Sulthanbatheri. It is submitted that conscious of the pendency of this
case, trial in the other case, ie. the 138 prosecution proceeded. It
ended in conviction. An appeal was taken and the appeal was
dismissed by the appellate court. A revision petition is now pending.
The revision has already been admitted as Crl.R.P.3212 of 2006. An
order of suspension of sentence has also been passed.
3. The prosecution under Sections 468 and 471 I.P.C in
which the petitioner is the defacto complainant is now coming up for
trial before the learned Magistrate. The Prosecutor filed an
Crl.M.C.NO.160 Of 2007 2
application for stay of proceedings. The learned Magistrate by the
impugned order, a copy of which is produced as Annexure-5, turned
down the prayer for stay and directed that the trial must proceed.
4. The petitioner claims to be aggrieved by the impugned
order. She has come to this Court with this petition under Section
482 Cr.P.C. It is prayed that the proceedings in this prosecution,
ie.C.C.52 of 2005 may be stayed.
5. I have no hesitation to agree with the learned counsel for
the petitioner that the nature of allegations in the two prosecutions
being in the nature of allegation and counter allegation must have
ideally been disposed of together by the learned Magistrate. It is trite
that when an allegation and counter allegation are raised in two
different complaints, the same judicial mind must be applied to the
facts and such judicial mind must take decision in each case
uninfluenced by the evidence in the other case. The position is well
settled and it is reiterated in Sudhir v. State of Madhya Pradesh
[A.I.R. (2001) S.C 826]. There can be no doubt on that proposition at
all. That principle has arisen not from any specific statutory
provision, but on the principles of justice which insist and mandate
that the same judicial mind must consider the materials in both cases
obviously in the interests of avoiding conflicting decisions. Let the
ideal remain as it is. In this case, the ideal course was not followed.
The learned Magistrate though apprised of the pendency of both
Crl.M.C.NO.160 Of 2007 3
cases, did not choose to insist that both cases must be tried together
and disposed of simultaneously. The complainant and the accused,
though the matter was brought to the notice of the learned
Magistrate, did not come to this Court complaining about the course
adopted by the learned Magistrate of proceeding with the prosecution
under Section 138 of the N.I Act alone. The prosecution under
Section 138 of the N.I Act was disposed of by the learned Magistrate
holding the petitioner guilty of the offence under Section 138 of the
N.I Act. In the appeal and the revision, the petitioner has raised a
contention that the procedure adopted by the learned Magistrate is
incorrect.
6. Be that as it may, the present prayer to stay the
proceedings in the prosecution under Section 468 and 471 I.P.C does
not appear to be justified in any view of the matter. The ideal course
has not been followed. The parties did not at the appropriate time
bring the fact to the notice of this Court. They appear to have
acquiesced to the non ideal course followed by the learned Magistrate
in disposing of the prosecution under Section 138 of the N.I Act alone.
It is difficult now to set the clock back. Even if trial were held
simultaneously in both cases, the learned Magistrate is obliged under
law, not to import the information/material in one case to the other.
The law is trite that the evidence will have to be considered in water
Crl.M.C.NO.160 Of 2007 4
tight compartments in the 2 cases. Evidence in one case cannot be
imported to the other case merely because the cases are in the nature
of a case and counter case. I have already noted that the insistence
that such case and counter case must be tried together is not an
insistence of the statutory law. It is only an insistence of precedential
declarations in the interests of justice.
7. In the present situation, I am of opinion that the only
direction that can be made is to expeditiously dispose of the present
prosecution so that, if necessary, the challenge if any against that can
also be considered along with challenge which is now pending before
this Court in revision. I am unable to invent or prescribe any
different or better course at the moment. Waiting for the disposal of
the pending revision is not in any way going to be helpful. The
petitioner will have to blame herself for not having brought to the
notice of this Court the incorrect procedure followed by the learned
Magistrate of taking up the 138 prosecution before this prosecution
was also taken up. In any view of the matter, I am satisfied that
invoking the extra ordinary inherent jurisdiction available to this
Court under Section 482 Cr.P.C, no interference with the impugned
order is necessary. The learned Magistrate must proceed to dispose
of the present prosecution under Section 468 & 471 I.P.C as
expeditiously as possible uninfluenced, at any rate, by any of the
findings recorded by the trial court or the appellate court in the
Crl.M.C.NO.160 Of 2007 5
prosecution under Section 138 of the N.I Act. With the above
observations, this Crl.M.C is, dismissed. Communicate the order to
the learned Magistrate forthwith. I make it clear that I have not
intended in any way to fetter the right of the petitioner to raise all
pleas which are available to him in the revision which is already
pending before this Court.
(R.BASANT, JUDGE)
rtr/-