IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Tr.P(Crl.).No. 10 of 2008() --------------------------- ST.6305/2005 of J.M.F.C.-III,THRISSUR 0 .................... PETITIONER: ------------ 1. SR. PATIENCE, AGED 66 YEARS, MOTHER PROVINCIAL BETHANY SISTERS PROVINCIALATE ANCHELPETTY P.O., PAMPAKUDA, MOOVATTUPUZHA. 2. SR. EVANIYA, AGED 45 YEARS, BETHANY SISTERS PROVINCIALATE ANCHELPETTY P.O. PAMPAKUDA, MOOVATTUPUZHA. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENTS: ------------- 1. K.M. ABDUL ASHARAF, S/O. MOIDEENKUTTY, KAYAMKULAM HOUSE, KARUVANKADU, MADAKATHARA P.O., THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB SRI.P.SANTHOSH (PODUVAL) FOR R1 SMT.R.RAJITHA FOR R1 THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Tr.P.(Crl).No. 10 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2008 O R D E R The petitioners are the accused in a prosecution under Section 138 of the N.I. Act. The cheque is dated 14.7.2005. It was dishonoured on 21.7.2005. The complaint against the petitioners was filed on 6.10.2005. Cognizance was taken and the complaint was pending. This prosecution under Section 138 of the N.I. Act is pending before the J.F.C.M.III, Trichur. 2. While the said prosecution under Section 138 was pending before the Trichur Court, the petitioner herein appears to have filed a private complaint before the J.F.C.M. I, Muvattupuzha on 26.10.2006. That complaint was forwarded to the police. The police conducted investigation. Final report was filed and cognizance was ultimately taken in 2007 and the case was numbered as C.C.223 of 2007. The petitioners have been exempted from personal appearance before the J.F.C.M. III, Trichur, it is submitted. At this juncture the petitioners have Tr.P.(Crl).No. 10 of 2008 2 come to this Court with a prayer that S.T. 6305 of 2005 pending before the J.F.C.M. III, Trichur may be transferred to the Court of J.F.C.M. I, Muvattupuzha to be taken up for trial along with C.C.223 of 2007. Allegations in the prosecution under Section 138 of the N.I. Act and the police charge case pending as C.C.223 of 2007 are in the nature of allegations and counter allegations in respect of the same cheque. In these circumstances it is submitted that the interests of justice will be best served by issuing a direction that both the cases be tried by the same judicial officer. 3. The learned counsel for the respondent does not oppose the prayer for issue of directions to ensure that both cases are heard and disposed of by the same court. But the learned counsel submits that the latter prosecution is a transparent abuse of process of the court and that the prosecution has been launched after more than one year after the cheque was dishonoured and the complaint under Section 138 was filed and cognizance was taken by the learned Magistrate. In these circumstances the counsel prays that if this Court were pleased to direct transfer, C.C.223 of 2007 pending before the J.F.C.M. I, Tr.P.(Crl).No. 10 of 2008 3 Muvattupuzha may be ordered to be transferred to the court of J.F.C.M. III, Trichur, where the prosecution under Section 138 of the N.I. Act is now pending. That prosecution is obviously a counter blast against the prosecution under Section 138 of the N.I. Act. Taking all these circumstances into account, the transfer may be directed only to the Court of J.F.M.C. III, Trichur, urges the learned counsel for the respondent. 4. The learned counsel for the petitioners does not concede to that request. But notwithstanding his opposition, I am satisfied that the said prayer is absolutely justified. 5. In the result: a) This transfer petition is allowed. b) C.C.223 of 2007 pending before the J.F.C.M. I, Muvattupuzha is transferred to the Court of J.F.C.M.- III, Trichur, where connected S.T. 6305 of 2005 is pending. The J.F.C.M.-I, Muvattupuzha shall forthwith forward the records to the J.F.C.M.-III, Trichur and shall direct the parties to appear before the court without waiting for any further direction. Needless to say, the cases being in Tr.P.(Crl).No. 10 of 2008 4 the nature of case and counter case, both cases must be disposed of only simultaneously by the J.F.C.M. III, Trichur. (R. BASANT) Judge tm