IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 Tr.P(Crl.).No. 41 of 2008() --------------------------- ST.1352/2006 of J.M.F.C.,NADAPURAM .................... PETITIONER: PETITIONERS ----------------------- 1. MUHAMMED ISSAHAK, KOORIMANNIL VILAYUR AMSOM, OTTAPALAM TALUK PALGHAT 2. K.AHMED KUTTY, S/O.HAMSA HAJI KARANATH HOUSE, KATHUMALA VILAGE, MANNARKAD TALUK, PALGHAT BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENTS: ------------- 1. K.K.ABDUL SALAM, KOLLAMKANDY HOUSE KUMMANKODE AMSOM, NADAPURAM PO., VATAKARA TALUK KOZHIKODE 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV. SRI.V.V.SURENDRAN FOR R1 SRI.V.R.JAIKRISHNAN FOR R1 PUBLIC PROSECUTOR SRI.JAI GEORGE THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- T.P.Crl.No.41 of 2008 ---------------------------------------- Dated this the 30th day of June 2008 O R D E R The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. The same was pending as S.T.No.1352/2006 before the J.F.C.M-I, Nadapuram and now it has been transferred to the Court of the Munsiff Magistrate, Nadapuram, it is submitted. He is the de facto complainant in another case pending as C.C.No.25/08 pending before the J.F.C.M, Mannarkkad. The allegations in both cases relate to a cheque which has allegedly been issued by the petitioner to the first respondent/complainant. In the prosecution under Section 138 of the Negotiable Instruments Act the case has reached the stage of 313 examination. In the prosecution under Section 420 I.P.C before the J.F.C.M, Mannarkkad, cognizance was taken only in 2008 and the first posting for appearance was on 12/5/2008. The petitioner had earlier come before this court with a prayer that transfer may be ordered from the court at Nadapuram for some other reason. That application for transfer was rejected as per order dated 29/5/2008 in Tr.P.(Crl).No.95/2007. It is at this later stage that the petitioner has again come to this court with a prayer for transfer. The short ground to justify the prayer for transfer now is that the Tr.P.Crl.No.41/08 2 allegations in the two cases are in the nature of allegations and counter allegations. The defence in the prosecution under Section 138 of the Negotiable Instruments Act is the case of the de facto complainant in the prosecution under Section 420 I.P.C. It is in these circumstances prayed that transfer of the prosecution under Section 138 of the Negotiable Instruments Act may be directed to the court of the J.F.C.M, Mannarkkad where the prosecution under Section 420 I.P.C is pending. In the alternative, it is prayed that the transfer may be directed to any court between the courts at Mannarkkad and Nadapuram so that the inconvenience can be shared by both equally. 2. The learned counsel for the respondent/complainant opposes the application vehemently. He contends that even the prosecution under Section 420 I.P.C has been initiated long after the commencement of the 138 proceedings with the transparent intention of vexing and harassing the respondent/complainant. The learned counsel for the respondent submits that if this court feels that such a transfer must be directed, it may be directed to be transferred to the court where the prosecution under Section 138 of the Negotiable Instruments Act is pending. I have considered all the relevant inputs. I shall carefully avoid any expression of opinion on merits about the motives behind the later prosecution under Section 420 I.P.C. Suffice it to say that I am satisfied that Tr.P.Crl.No.41/08 3 transfer can be directed to ensure that both cases are heard and disposed of by the same court. But I am satisfied that the transfer must be to the court before which the prosecution under Section 138 of the Negotiable Instruments Act is now pending. Such a direction, I am satisfied, shall serve the ends of justice eminently. 3. In the result, a) This petition is allowed. b) C.C.No.25/08 pending before the J.F.C.M, Mannarkkad is transferred to the court of the Munsiff Magistrate, Nadapuram where S.T.No.1352/2006 is pending (that case has been re- numbered, it is submitted at the Bar). c) The learned J.F.C.M, Mannarkkad shall forthwith transfer the records in C.C.No.25/08 to the court of the Munsiff Magistrate, Nadapuram where the prosecution under Section 138 of the Negotiable Instruments Act is pending and shall direct the accused persons to appear before that court on 21/7/2008. The accused shall appear before that court without waiting for any further notice or directions. 4. The learned Munsiff Magistrate, Nadapuram shall forthwith proceed to dispose of both cases as expeditiously as possible. (R.BASANT, JUDGE) jsr Tr.P.Crl.No.41/08 4 Tr.P.Crl.No.41/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007