IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 30TH JANUARY 2010 / 10TH MAGHA 1931 Tr.P(Crl.).No. 123 of 2009() ---------------------------- TRANSFER OF S.T.1191/2006 OF JFCM, KOLENCHERY TO JFCM, ADIMALY. PETITIONER(S): --------------------- DAVID P.M @ RAJAN S/O.MATHAI, POTTACKAL HOUSE, PATHINALAYM MILE MANNAMKANDAM, VALARA PO, DEVIKULAM IDUKKI DISTRICT. BY ADV. SMT.C.S.SHEEJA RESPONDENT(S): ---------------------- 1. STATE OF KERALA,REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. 2. HYDROSE, S/O.SYED MUTHAMMED KUMMATHU PUTHENPURAYIL HOUSE PATTIMATTOM, KUNNATHUNADU, ERNAKULAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM R2 BY ADV. SRI. KI. ABDUL RASHEED. THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON 30/01/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Tr.P.(Crl). No. 123 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2010. ORDER This is a petition filed under Section 407 of the Code of Criminal Procedure seeking to have S.T. 1191 of 2006 pending on the file of the Judicial Magistrate of the First Class, Kolenchery transferred to the file of the Judicial Magistrate of the First Class, Adimaly. 2. Petitioner is the accused in S.T.1191 of 2006 before the JFCM, Kolenchery for having committed offence punishable under Section 138 of the Negotiable Instruments Act. The second respondent herein is the complainant. Allegation against the petitioner was that as part payment of the consideration of sale of a Margin Free Market, petitioner had issued a cheque for Rs.4,97,885/- to the second respondent. The cheque on presentation bounced for want of funds. Suit notice was Tr.P.(Crl.).123/2009. 2 issued. Since the amount was not paid, prosecution was launched. 3. It is pointed out by the petitioner that the second respondent is the first accused in C.C.661 of 2007 pending before the Judicial Magistrate of the First Class, Adimaly. That was on the basis of Crime No.165 of 2006 for offence punishable under Sections 406, 420, 467, 468 and 477A read with Section 34 of the Indian Penal Code. The crime was registered on the basis of a private complaint filed by the petitioner, which was sent for investigation under Section 156 (3) of Cr.P.C.. Annexure A2 is the final report in the said case. 4. According to the petitioner, the entire dispute revolves around the purchase of Margin Free Market, which was owned by the second respondent. Petitioner points out that the total consideration of the Margin Free Market was Rs.15,35,000/-. Petitioner had paid advance of Tr.P.(Crl.).123/2009. 3 Rs.6,54,500/- on 9.1.2006, that is, on the same day on which the agreement for transfer was executed. For the balance consideration two cheques, namely, one for Rs.2,00,000/- dated 14.1.2006 and another for Rs.4,97,885/- dated 31.1.2006 drawn on the Federal Bank, Adimaly were handed over to the second respondent. In fact the petitioner gave Rs.2,00,000/- to the second respondent. 5. Petitioner says that it was realised by him while running the Margin Free Market that there was considerable deficiency in the stock and there was no explanation. According to the petitioner, the difference comes to about Rs.2,75,831/-. That resulted in compromise being entered into between the petitioner and the second respondent. As per the settlement, the second respondent agreed to prepare the stock list and price list. Petitioner claims that he had given Rs.1,45,000/- to the second respondent on 9.3.2006. The second respondent had agreed not to encash the Tr.P.(Crl.).123/2009. 4 cheques. He also agreed not to present the cheque for Rs.4,97,885/-. When summons was received from the Magistrate Court, Kolenchery, the petitioner entered appearance. Later on he obtained bail. The petitioner had earlier moved Crl.M.C.600 of 2008 before this Court for quashing Annexure A1 complaint on various grounds. This Court, by order dated 17.11.2009 dismissed the petition, which is marked as Annexure A4. 6. According to the petitioner, Annexure A1 complaint is pending before the JFCM, Kolenchery. Petitioner would say that the claim of the second respondent with reference to the cheque said to have been drawn by him depends to a great extent on the result of the other case at Adimaly. It was pointed out by the petitioner that the employee of the second respondent had manipulated the records and falsified the accounts. Tr.P.(Crl.).123/2009. 5 7. Ultimately, it is contended that both the proceedings are inter-linked and they may be tried by the same court. Accordingly, it is prayed that S.T.1191 of 2006 pending before the JFCM, Kolenchery be transferred to JFCM, Adimaly. 8. Learned counsel appearing for the second respondent very vehemently opposed the petition. It is pointed out by him that the prosecution initiated by him under Section 138 of the NI Act was in 2006. Till date, the petitioner had done nothing in the matter. There is nothing common in the two cases. According to him, they are to be independently tried depending on the evidence adduced in each case. He therefore opposed the application for transfer. 9. There is nothing to show that there is any connection between the two cases. The claim of the petitioner herein that if C.C.661 of 2008 ends in conviction, Tr.P.(Crl.).123/2009. 6 that would be a strong defence for him in S.T.1191 of 2006. There is nothing to show that common issues arise for consideration. There is also nothing to show that the decision in one case will have any persuasive effect on the other case. No grounds necessary to consider transfer is available in the present case. As rightly pointed out by the learned counsel for the second respondent, on going through the records, no similarity is found between the two cases. Some of the evidence may be common in both the cases. Therefore, there need not be a joint trial. The evidence to be adduced in both the cases are entirely different and are not mutually dependent. This petition is without merits, and accordingly it is dismissed. P. BHAVADASAN, JUDGE sb.