IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 OP(Crl.).No. 1015 of 2011(Q) ---------------------------- AGAINST THE ORDER IN CMP 416/2010 IN ST.278/2009 of J.M.F.C.-II,PATHANAMTHITTA .................... PETITIONER/ACCUSED: -------------------------------------- N.N.SASI, ADVOCATE, 49 YEARS, NELLIMALA VALLIYIL,CHIRAYIRAMBU.P.O. MARAMAON, THIRUVALLA, PATHANAMTHITTA. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- P.K.KAMALASANAN, 56 YEARS, S/O. KRISHNAN, PANACHACKAL HOUSE, KAREMVELI.P.O., MALLAPPUZHSSERY VILLAGE, KOZHENCHERRY TALUK,PATHANAMTHITTA-689 641. THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 11/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.) No.1015 of 2011 -------------------------------------- Dated this the 11th day of March, 2011. JUDGMENT Petitioner is the defacto complainant in C.C.No.378 of 2010 of the court of learned Judicial First Class Magistrate-II, Pathanamthitta for offences punishable under Sections 352, 452, 506(ii), 468, 471 and 120B read with Section 34 of the Indian Penal Code and accused in S.T.No.278 of 2009 of the same court for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). According to the respondent, petitioner issued the cheque in discharge of a legally enforceable debt/liability, it was dishonoured for insufficiency of funds and inspite of dishonour intimation petitioner did not pay the amount. According to the petitioner, accused in C.C.No.378 of 2010 trespassed into his house and forcibly obtained the cheque. Petitioner filed C.M.P.No.416 of 2010 in the court below for joint trial of the two cases. That application was dismissed by the learned Magistrate vide Ext.P9, order dated February 24, 2011. Ext.P9, order is under challenge. Learned counsel submits that since cause of action for both the cases are the same and the cases are in respect of the same matter it is necessary that both the cases are tried jointly. I have heard learned Public Prosecutor also. 2. I am not inclined to think that under any provision of the Code of OP(Crl.) No.1015/2011 2 Criminal Procedure these two cases could be tried together. In one case the offence alleged is under Section 138 of the Act where petitioner is the accused and in C.C.No.378 of 2010 case is that the accused therein forcibly trespassed into the house of petitioner and obtained the cheque under threat. Allegations are different, accused are different, witnesses are different and the evidence to be let in is also different. The accused in one case is a witness in the other. In such situation there could be no joint trial of the two cases. 3. But since there is some connection between the two cases, it is necessary that the same court disposed of the cases simultaneously. Learned Magistrate has to record the evidence in one case after recording evidence in the other case and the cases are to be disposed of simultaneously taking care that the decision in one case is not influenced by the evidence in the other case. Resultantly this petition is disposed of directing the learned Magistrate to dispose of S.T.No.278 of 2009 and C.C.No.378 of 2010 simultaneously, recording the evidence in one case after recording evidence in the other case and judgments in each case shall be pronounced simultaneously taking care that the decision in one case is not influenced by the evidence in the other case. THOMAS P.JOSEPH, Judge. cks