IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Crl.MC.No. 1617 of 2008(F) ------------------------- AGAINST THE ORDER IN CMP 7887/2007 IN CC.200/2006 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... PETITIONER: IST ACCUSED ----------------------- KOTHAMBRA KUNJAMMED HAJI, AGED 78 YEARS, S/O.MOOSA, PALARI VILLAGE, CHANGAROTH PANCHAYATH, PERAMBRA, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENTS: DEFACTO COMPLAINANT/ACCUSED 2 AND 3/STATE ------------------------------------------------------ 1. U.P.MUHAMMED, AGED 59 YEARS, S/O.KUNHIMOIDEEN, UCHAPPALLY HOUSE, MUTHUMBARA, MANJERI P.O., ERNAD TALUK, KOZHIKODE DISTRICT. 2. A.P.KUNHAMMED, S/O.MOIDEEN, AGED 59 YEARS, EDAVANNA POYIL, ERAVATTOOR P.O., PERAMBRA, KOZHIKODE DISTRICT. 3. C.P.ABDULLAH, S/O.MOIDEEN, AGED 49 YEARS, CHAKKUPARAMBATH HOUSE, "JANNATH", MEPPAYOOR, KOZHIKODE DISTRICT. 4. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANJERI POLICE STATION, MANJERI. BY PUBLIC PROSECUTOR SRI.AMJAD ALI. SRI.SUNIL V.MOHAMMED FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1617 of 2008 ---------------------------------------- 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 Crl.M.C.No.1617/08 4 Crl.M.C.No.1617/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008