IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 30321 of 2008(I) -------------------------- OS.131/1998 of SUB COURT, MUVATTUPUZHA CC.267/1996 of J.M.F.C.-I MUVATUPUZHA .................... PETITIONER: ------------- KOCHUKURU, S/O. KURIAKOSE, ANACHIRA VEEDU, KEERAMPARA KARA, KEERAMPARA VILLAGE, KOTHAMANGALAM. BY ADV. DR.GEORGE ABRAHAM RESPONDENT: ---------------- CHARLEY JOHN, S/O. JOHN, MADATHUVILAKOM KARA, PATTOM.P.O, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- W.P.(C) No. 30321 OF 2008 ----------------------------------------------- Dated this the 15th day of October, 2008 JUDGMENT Petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. Cognizance was taken and the trial of the case had been completed. The case ended in acquittal. Petitioner preferred an appeal. In such appeal the order of acquittal was set aside. The case was sent back to the Magistrate for fresh disposal. The case has not been disposed of yet. 2. In the meantime, the complainant had preferred a civil suit claiming the amount due under the cheque. After the case before the Magistrate court ended in acquittal, the petitioner applied for and got back the original cheque which by then had been marked as Ext.P1 in the criminal case. The same was produced before the Sub court. The trial in the civil suit has commenced. The civil suit has not been disposed of yet. The learned counsel for the petitioner submits that before taking back the original of Ext.P1 cheque from the Court, a photocopy has been produced in substitution. But that is not a certified copy. To help the W.P.(C). No. 30321 OF 2008 -:2:- Magistrate to dispose of the 138 prosecution, petitioner applied before the Subordinate Judge for return of the original cheque to him. That prayer was rejected by the learned Subordinate Judge by Ext.P5 order. There upon to help the criminal court to dispose of the 138 prosecution, petitioner made an application before the Magistrate to call for the original cheque from the file of the Subordinate Judge. That petition has been dismissed by Ext.P7 order. The learned Magistrate appears to think that the petitioner must take back the original cheque from the Sub Court and produce it before the Magistrate. The request of the petitioner to that effect has already been turned out by the Subordinate Judge. In these circumstances the petitioner has come before this Court for issue of appropriate directions. 3. Admittedly, cheque has already been marked in the criminal court as Ext.P1. Admittedly, the original was returned to the petitioner and the petitioner has also produced the same before the Civil Court. The civil case is not disposed of. Petitioner has genuine difficulty to produce the original cheque before the Magistrate now. It is for the learned Magistrate now to decide W.P.(C). No. 30321 OF 2008 -:3:- whether he wants to peruse the original of Ext.P1 for a proper disposal of the prosecution under 138 prosecution. If such perusal be necessary, the learned Magistrate must, in the facts and circumstances of this case, issue a letter of request to the Subordinate Judge to make the same available for perusal. After perusing the same, it has to be promptly returned to the learned Subordinate Judge after disposal of the criminal prosecution. The impugned order, in these circumstances, does warrant interference. 4. In the result, this Crl.M.C is allowed. The impugned order is set aside. The learned Magistrate shall consider the matter afresh and take appropriate decision in the light of the observations made above. R. BASANT, JUDGE ttb W.P.(C). No. 30321 OF 2008 -:4:- W.P.(C). No. 30321 OF 2008 -:5:-