IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Tr.P(Crl.).No. 66 of 2009(F) --------------------------- STC.1773/2007 of JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM .................... PETITIONER: ---------------- A.V.ABDULLAH HAJI,S/O.NURINE KUTTY HAJI, NALLANOOR,MOOPAINAD AMSOM,DESOM, VYTHIRI TALUK,WAYANAD. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.BENNY P. THOMAS RESPONDENTS: --------------------- 1.ZACHARIAH P.PARATTE ALIAS ROY, S/O.LATE KORA PAUL ELAVAYAL SHALOM GARDEN, PUTHUMALA P.O.,VELLARMALA VILLAGE,VYTHIRI TALUK, WAYANAD DISTRICT,NOW RESIDING AT KOCHUPARATTE HOUSE,MOOLAVATTOM,PANACHIKKAD VILLAGE, KOTTAYAM 686 026. 2.STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.K.K.JOHN SRI.BENNY CHERIAN R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: app/- M.SASIDHARAN NAMBIAR, J. ================== T.P.(Cr) No. 66 of 2009-F ================== Dated this the 24th day of June, 2009. O R D E R Petitioner is the accused and first respondent the complainant in S.T.No.1773/2007 on the file of Judicial First Class Magistrate Court-III, Kottayam. Learned Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments Act on the complaint filed by the first respondent. This petition is filed to transfer that case to Chief Judicial Magistrate Court-IV, Kalpetta contending that with regard to the very same cheque, petitioner filed a complaint alleging offences under Sections 420, 423 and 465 of Indian Penal Code, which was already taken cognizance by Chief Judicial Magistrate-IV, Kalpetta as C.C.No.228/2008. It is contended that both the cases are to be tried together and therefore the case pending before Judicial First Class Magistrate Court-III, Kottayam, is to be transferred to Chief Judicial Magistrate-IV, Kalpetta. 2. First respondent opposed the application. T.P.(Cr) No.66/2009-F -2- 3. Learned Counsel appearing for the petitioner and learned Counsel appearing for first respondent were heard. 4. The argument of the learned Counsel appearing for the petitioner is that when the defence case in S.T.No.1773/2007 before the Judicial First Class Magistrate Court, Kottayam, is the complainant's case in C.C.No.228/2008 both are to be decided by the same Magistrate. It was contended that in S.T.No.1773/2007 respondent has a case that the dishonoured cheque was issued towards repayment of the amount due from the petitioner towards the balance consideration under a sale deed, case of the petitioner in C.C.No.228/2008 is also in respect of the same cheque and the case is that first respondent committed cheating as well as forgery and thereby committed offences under Sections 420, 423 and 465 of Indian Penal Code. It is argued that, in any case, both the cases are to be tried by the same court, as otherwise there is a chance for conflicting decisions. T.P.(Cr) No.66/2009-F -3- 5. Learned Counsel appearing for the first respondent submitted that first respondent has no case that the dishonoured cheque was issued towards the balance amount payable under a sale deed and in such circumstances, there is no necessity to try both the cases together. Learned Counsel also argued that, in any case, the case pending before Judicial First Class Magistrate Court, Kottayam cannot be transferred to Chief Judicial Magistrate, Kalpetta. 6. The question whether the consideration for dishonoured cheque is the balance sale consideration payable under a sale deed or not is to be decided in this petition. As far as the case pending at Kottayam is concerned, as per the allegations in the complainant, learned Magistrate has territorial jurisdiction to try the case. When such a case is sought to be transferred to Kalpetta, it cannot be transferred against the wishes of the complainant/first respondent. True, if the defence to be T.P.(Cr) No.66/2009-F -4- raised in S.T.No.1773/2007 is intrinsically connected with the prosecution case in C.C.No.278/2008, to avoid conflicting decisions it is always better to try both the cases together. Therefore, in the interest of justice, though there is no prayer, C.C.No.288/2008 on the file of Chief Judicial Magistrate-IV, Kalpetta is transferred to Judicial First Magistrate Court-III, Kottayam, to be tried by the same Magistrate, so that conflicting decisions could be avoided. M.SASIDHARAN NAMBIAR JUDGE dkr