IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1617 of 2008()
1. KOTHAMBRA KUNJAMMED HAJI,
... Petitioner
Vs
1. U.P.MUHAMMED, AGED 59 YEARS,
... Respondent
2. A.P.KUNHAMMED, S/O.MOIDEEN,
3. C.P.ABDULLAH, S/O.MOIDEEN,
4. THE STATE OF KERALA, REPRESENTED
For Petitioner :SRI.K.M.FIROZ
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :23/07/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.1617 of 2008
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Dated this the 23rd day of July 2008
O R D E R
The petitioner, a senior citizen aged about 78 years, faces
indictment in two separate prosecutions one under Section 138
of the Negotiable Instruments Act instituted by the first
respondent herein. In the second prosecution he is one of the
three accused and the first respondent is the de facto
complainant in that prosecution. The first case is under Section
138 of the Negotiable Instruments Act whereas the latter is
instituted on the basis of the final report submitted by the police
is under Section 420 I.P.C. Respondents 2 and 3 are co-accused
along with the petitioner in that prosecution under Section 420
I.P.C.
2. All the allegations raised are identical and on the
same set of facts, It is alleged that two different offences have
been committed by the petitioner. The petitioner, to avoid
wastage of time and unnecessary obligation to defend two
different cases, filed an application before the court below to
consolidate the allegations in both cases and to ensure that one
Crl.M.C.No.1617/08 2
common trial is conducted. The learned Chief Judicial
Magistrate, Manjeri, by the impugned order rejected that
application. That there is only one accused in one case where as
there are two others also in the other and that the ingredients of
the offences alleged in the two cases are different are reckoned
as reasons to justify the rejection of the prayer for joint trial.
Only the petitioner and the third respondent are represented by
counsel before me. Respondents 1 and 2 though served there is
no representation for them.
3. It is true that the allegations raised relate to two
different offences one under Section 138 of the Negotiable
Instruments Act and the other under Section 420 I.P.C. It is also
true that the petitioner is the common accused in both cases,
respondents 2 and 3 are accused only in the prosecution under
Section 420 I.P.C. It is also true that one case is instituted by
the complainant/first respondent whereas in the other
cognizance has been taken on the basis of the final report
submitted by the police.
4. The nature of the allegations in two cases are the
same and are exactly identical. The allegations cannot are also
Crl.M.C.No.1617/08 3
not incongruent, mutually contradictory or destructive. In these
circumstances, I am satisfied that the interests of justice shall be
served eminently by directing the learned Chief Judicial
Magistrate to consolidate the allegations in both these cases and
proceed with a common trial. Section 420 I.P.C being a warrant
offence, needless to say, procedure for trial of a warrant offence
instituted on a police report shall be followed by the learned
Magistrate.
5. This petition is accordingly allowed. The impugned
order is set aside. The learned Magistrate is directed to conduct
the trial on a consolidated charge as indicated above.
(R.BASANT, JUDGE)
jsr
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Crl.M.C.No.1617/08 5
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008