HON’BLE SRI JUSTICE N. RAVI SHANKAR Transfer Criminal Petition Nos.40, 41 and 42 of 2010 COMMON ORDER:- The point involved in these three transfer petitions is whether three different calendar cases pending on the file of a Metropolitan Magistrate Court at Hyderabad ought to be transferred to an Additional Metropolitan Sessions Judge’s court at Hyderabad to be tried along with a sessions case pending on its file. The parties are also same. Hence all these three petitions are taken up for disposal by this common order. 2. The petitioner in all these three petitions who is appearing as party in person is one Sri Laxminivas Agarwal. He is the accused in C.C.No.1278 of 2005, C.C.No.2060 of 2003 and C.C.No.1903 of 2003 which are all pending on the file of the IX Additional Chief Metropolitan Magistrate, Hyderabad (CMM court). One Smt Lata Jain is the de facto complainant in all the said cases. He filed these petitions for transfer of the above calendar cases to the Court of VII Additional Metropolitan Sessions Judge, Hyderabad (sessions court), to be tried along with sessions case S.C.No.505 of 2003 on its file. Smt Lata Jain is the de facto complainant and the petitioner herein is accused in the said case also. 3. It should be noted here that C.C.No.1278 of 2005 is registered for the offences punishable under Sections 380, 385 and 506 IPC and the alleged incident giving rise to the said offences in the said case is said to have occurred on 21.04.2003 at the house of the de facto complainant at Hyderabad. Then coming to C.C.No.2060 of 2003 it is registered for offences punishable under Sections 448, 506 and 509 IPC and the incident giving rise to the said offences is said to have occurred on 29.05.2003 at 10.30 PM again at the house of the de facto complainant. Then coming to C.C.No.1903 of 2003 it is registered for the offences punishable under Sections 448, 506 and 509 IPC and the incident in the said case giving rise to the said offences is said to have occurred on 24.02.2003 at the office of the de facto complainant. 4. Then turning to the S.C.No.505 of 2003 which is pending on the file of the sessions court, the petitioner is facing trial for an offence under Section 354 IPC and the incident giving rise to the said offence is said to have occurred on 30.07.2003 at 3.15 pm on the stair case in a building called Khan Lateef Khan Building at Hyderabad. The other details are not necessary. 5. Copies of the charge sheets in all the above four cases have been filed in the material papers. It is stated that for some reason a marriage alliance proposed for the younger sister of the de facto complainant with the brother of the petitioner did not materialise but subsequently the petitioner is alleged to have approached the de facto complainant who is a married lady with a five year old son with a proposal to marry her and when she refused the petitioner started harassing her and committed the various offences referred to supra against her on various dates and all the above three calendar cases and the sessions case are said to have been registered in connection with the said offences allegedly committed by the petitioner against her. It may be noted that it is not for this court to decide about the merits of the matter in each case and hence though the petitioner who appeared in person argued about the same they are not gone into in these transfer petitions. 6. Two grounds have been raised by the petitioner in support of his plea in these petitions. The first is that his defence in all the cases (i.e. the three calendar cases and the sessions case) is same and the witnesses are also same and therefore all the cases should be tried together or they should be tried by the same court one after the other and disposed of simultaneously so that there may not be any conflict of opinion if they are allowed to be tried by different courts. In support of this plea the petitioner stated that earlier there was a sale transaction between him and the de facto complainant in connection with the sale of a residential flat which he agreed to purchase from her and in that transaction he already paid an amount of Rs.2,50,000/- to her. His further version is that at that time the de facto complainant issued three cheques to him, two for Rs.75,000/- each and one for Rs.1 lakh, stating that in the event of herself failing to execute a sale deed the petitioner can encash the same and that subsequently when the de facto complainant failed to execute the sale deed he went to her office to demand her for completion of the said transaction or return the money and at that time by showing some currency bundles she asked him to return the cheques and after he returned the cheques she tore off the cheques but did not pay the amount. 7. It is then stated by him that in connection with that transaction he gave a report in Afzal Gunj police station but the police did not register any case and thereafter he filed a private complaint before the IV Metropolitan Magistrate, Hyderabad, and it was referred to Afzal Gunj police station where it was registered as Crime No.691 of 2003 against the de facto complainant and her family members for the offences punishable under Sections 425 and 420 r/w 120-B IPC. It is not stated by the petitioner as to what happened to this case but he says that subsequently the de facto complainant in order to take revenge against him for filing the above complaint harassed him and in her turn got the above four cases i.e. three calendar cases and a sessions case foisted against him. With this plea he says that his defence in all the four cases is same and therefore they should be tried together. The second ground pleaded by him is that the aforesaid four cases are being called on different dates and in different courts and it has therefore become difficult for him to attend the said cases and therefore the three calendar cases should be transferred to the superior court i.e. sessions court where the sessions case is pending so that the said court can try all the four cases. He reiterates that such a course would avoid conflict of opinion also. 8. On the other hand, the learned counsel appearing for the de facto complainant reiterating her plea has argued that the transactions or incidents which are the subject matter of all the four cases are different transactions and are not connected to one another in any way and therefore there is no ground for transfer of the three calendar cases to the sessions court. Then repelling the contention of the convenience of the petitioner which pertains to his second ground, it is pointed out by the de facto complainant’s counsel that being an accused in a criminal case or different criminal cases the petitioner has to attend the court and he cannot complain any inconvenience. In addition to this the learned counsel for the de facto complainant also pointed out that S.C.No.505 of 2003 is a part heard one and most of the witnesses have been examined in it. Of-course this contention cannot be accepted and if there is a ground for transfer of the three calendar cases to be tried along with the session case the fact that the sessions case is a part heard one cannot be a ground for rejecting the transfer of the cases. Thus in the light of the above rival contentions the point has now to be decided. 9. The grounds taken by the petitioner in support of his transfer petitions have already been set out supra. The petitioner also relied upon a decision of our supreme court given in P.C.Gulati v. Lajya Ram[1] and a decision of this Court given in B.Sreedhar Reddy v. State of A.P.[2] and another decision of this court given in Laxminivas Agarwal v. Andhra Semi Conductors Pvt. Ltd. Hyd.[3]. 10. It may be noted that the P.C. Gulati’s case (1 supra) is an authority for the proposition that a high court can transfer a case pending before a Magistrate to a sessions court. There is no dispute about this proposition. It may be noted that if there are grounds for transfer of the aforesaid three criminal cases to the sessions court as urged by the petitioner certainly they can be transferred and the plea of the petitioner cannot be refused on the ground that this court has no such power. Then coming to Laxminivas Agarwal’s case (3 supra), it does not lay down any principle regarding transfer of cases. It pertains to an offence punishable under Section 138 of the Act and there this court recorded acquittal on merits of the matter. The petitioner relied upon this third decision to show about his character and conduct but this is not relevant here and hence it is not considered. 11. Now coming to the merits of the point i.e. whether there are grounds to transfer the aforesaid three calendar cases from the CMM court to the sessions court, it may be noted that the transactions or incidents which are the subject matter of the four cases have occurred on different dates and there is no connection between any one of them. This aspect is abundantly clear from the charge sheets in all the four cases and the dates on which the respective incidents occurred and also the places where they occurred have already been set out supra. The only common factor is that though the petitioner and the de facto complainant are common in all the four cases it may also be noted that the offence under Section 354 IPC is exclusively triable by a court of sessions whereas the offences mentioned in all the three calendar cases are triable by a Court of Judicial First Class Magistrate i.e. a Metropolitan Magistrate’s Court in a metropolitan area. 12. In other words except the aspect that the de facto complainant and her husband who is also cited as a witness and the petitioner who is arrayed as an accused in all the four cases there are no other common features regarding the places of incident and the method and the manner in which the alleged incidents are said to have occurred. Thus if all the four cases are ordered to be tried jointly that would result in misjoinder of charges. Equally since the offences in the calendar cases are exclusively triable by a JFCM court it follows that they cannot be transferred to a sessions court even assuming for a moment that sessions court can be directed to try the four cases even simultaneously, for the reason that the petitioner himself would lose an opportunity or remedy of appeal to a sessions court. 13. It may be noted that normally a calendar case pending in a JFCM court or a Metropolitan Magistrate court can be transferred to a sessions court to be tried along with or to be tried simultaneously along with a sessions case if both the cases arise out of the same transaction in order to determine who is the aggressor. In fact this is the principle laid down in B.Sreedhar Reddy’s case (2 supra). 14. In the present case, to repeat, the sessions case in question and all the other three calendar cases pertain to separate transactions and are said to have occurred on different dates and each incident or transaction has nothing to do with the other. In this connection it should be noted that except the de facto complainant and her husband and some of the inmates in her house, the other witnesses in each case are different and it cannot be said that all the witnesses in all the cases are one and the same. Further the three calendar cases in question are said to be pending in the same court. In such a situation I am of the opinion that it is not permissible for this court to accept the request of the petitioner. 15. It may however be noted that the petitioner has placed heavy reliance upon his defence evidence which is based upon the alleged sale transaction between him and the de facto complainant pertaining to a flat allegedly belonging to the de facto complainant. At the same time it should be noted that the motive or the act attributed by the de facto complainant for each of the alleged incidents is that after the marriage proposal of the de facto complainant’s sister with the brother of the petitioner did not materialize the petitioner started harassing her to marry him and when she refused he has committed the above offences. Here also it should be noted that the versions of the petitioner and the de facto complainant regarding the motive for the incident in all the four cases differs. Even otherwise it may be noted that if an accused has got a common defence in more than one case which are pending in different courts and if the said cases arise out of different transactions or incidents are unconnected with the other still it is open for the petitioner to raise his defence and prove it before the court in the cases which are separately tried. 16. Just because a defence happens to be common defence that by itself cannot be a ground to order three cases pending in the court of the Metropolitan Magistrate to be tried along with a sessions case in a Sessions Court. To repeat, it should be noted that the dates on which the alleged incidents occurred in all the three calendar cases and the sessions case in question are different and having regard to the dates it cannot be said that they form part of the same transaction. It should also be noted here that going by the principles relating to relevancy of judgments contained in Sections 40 to 44 of the Evidence Act, 1872, it can also be said that the judgment in each case cannot be said to be binding on the court dealing with the other cases. Thus each case has to be decided independently on its own merits and this is a minus point for petitioner which shows that the cases need not be tried by the same court. For these reasons I am of the opinion that the first plea of the petitioner cannot be considered as a valid ground for transfer of the cases. 17. Then turning to the second plea of the petitioner it pertains to his convenience in attending a single court for all the four cases. This cannot also be accepted for the simple reason that being an accused in more than one criminal case the petitioner cannot make such a request if he is otherwise not entitled to seek transfer or joint trial or simultaneous trial of the cases in a single court. As already stated supra the three calendar cases are pending in the same CMM court and therefore he can request that court to post all the three cases on a single day or as per his convenience and this is also a minus point for the petitioner under his second ground. Hence that plea is also rejected as he has to attend the courts. 18. Lastly the petitioner pointed out that he belongs to a very respectable business family in Hyderabad and he is totally innocent and the de facto complainant has unnecessarily launched these prosecutions against him only in order to malign him and his family. On this aspect it should be noted that the concerned police have investigated into all the four cases and in their wisdom they charge sheeted him. Thus the above plea of the petitioner which may be true or may not be true pertains to the merits of the matters in all the four cases and it has to be decided by the courts before which the cases are pending. 19. In these circumstances and for the aforesaid reasons the point is decided in the negative. Accordingly all these three transfer criminal petitions are dismissed. 20. Parting with the matter it may be noted that all the three calendar cases are admittedly pending in the CMM court. The said court is directed to post all the three cases having regard to the convenience of the petitioner and also the witnesses therein and dispose of the matters expeditiously. ______________________ N. RAVI SHANKAR, J 9th August 2011 CVRK [1] AIR 1966 SC 595 [2] 1988 (2) ALT 283 [3] 2006 (1) ALT (Crl.) 423 (A.P.)