1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.693 OF 2010 M/s. Rasiklal Ratilal Trading Pvt. Ltd. ...Applicant. v/s. M/s. Fancy Corporation Ltd. and Ors. ...Respondents. Mr. Prakash Naik ,adv. For the Applicant. Mr. Virendra H. Parikh, adv. For the Respondent Nos.1 and 2. Smt. V.R.Bhosale, APP for the R.No.3/State. CORAM : J.H. BHATIA, J. DATED : APRIL 28, 2011. P.C. 1 Heard the learned counsel for the parties. 2 Applicant had filed complaint under Section 138 of the Negotiable Instruments Act against the respondent nos.1 and 2 and it is registered as case no.674/S/2003 and it is pending before the Metropolitan Magistrate 23rd Court Esplanade. It appears that though the case is pending since 2003, recording of evidence has commenced only in the year 2008. Complainant filed an application before the trial Court to call three letters allegedly addressed by the accused to the Jankalyan Sahakari Bank in the year 2001-2002 admitting his certain liabilities, financial difficulties and defaults. When the bank was called to produce those documents, bank made a statement that those 2 documents were not available with it. Thereafter, complainant filed an application on 10.12.2008 making a request to summon Mr. H.N.Kulkarni, who was the manager of the said bank during the relevant period to produce document or to depose about the same. That application was opposed and the trial Court by passing lengthy order rejected it. According to the trial Court, documents were not relevant. That order is challenged in the present application. 3 The learned counsel for the applicant contends that whether the documents are relevant or not, that can be decided only after the documents are produced and proved and the Trial Court had unnecessarily entered into that controversy while deciding the application to summon witness for production of those documents. It appears that in another complaint under Section 138, the trial Court had allowed similar application. Whether those letters were actually written by the accused to the said bank or not can be be decided only after the concerned witness is examined. Complainant had produced xerox copies of those letters, which he claims to have procured from bank. If originals are not available but it is proved that such original letters were actually addressed by the accused to the bank, then in that case, the complainant may be entitled to prove the contents of the originals by producing copy 3 of the same as per the provisions of 65 and 66 of the Evidence Act. However, that stage will come only after Mr. H.N.Kulkarni is examined. 4 In view of the above, the impugned order is hereby set aside. The trial court is hereby directed to issue summon to Mr. H.N.Kulkarni as a witness to produce the said letters and give evidence in respect of the receipt of same. 5 Application stands disposed off accordingly. (J.H. BHATIA,J.)