IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WP(C).No. 24769 of 2008(W) -------------------------- ST.5642/2005 of J.M.F.C.-I,THRISSUR .................... PETITIONER(S): --------------- P. JAYAKUMAR, AGED 46, PROPRIETOR, MARS MARKETING, 134 A/J, IST FLOOR, AUTO TOWERS, I.T.C ROAD, BANGALORE - 560 002. BY ADV. SRI.M.UNNIKRISHNA MENON SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): --------------- 1. M/S. VXL POLYTECH PRIVATE LIMITED, KARUVANKAD.P.O, KUNDUKAD, THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR, DR.SELVIN J. PUTHIYEDAM, AGED 53, S/O. JOHN PUTHIYEDAM, PUTHIYEDAM HOUSE, POTTA, PERAMBRA, MUKUNDAPURAM TALUK, THRISSUR. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.C.JOHN FOR R1 GOVERNMENT PLEADER SRI.S.U.NAZER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.24769 of 2008 ---------------------------------------- Dated this the 17th day of October 2008 J U D G M E N T The petitioner faces indictment in a prosecution for offences punishable under Section 138 of the Negotiable Instruments Act. The cheque is for an amount exceeding Rs.6,00,000/-. The signature in the cheque is admitted. Though notice of demand was issued, it was returned unclaimed. Cognizance was taken by the learned Magistrate. Trial has commenced. It is at the stage of defence evidence now. The accused has taken up a contention that the cheque was not issued for the due discharge of any legally enforcible debt or liability; but was issued only as demanded by one Muraleedharan, an employee of the complainant for the purpose of “regularising” the accounts. It is the contention of the accused that no amount whatsoever is legally payable by the accused to the complainant and the cheque has not been issued for the discharge of any such liability. 2. At the defence stage, two petitions were filed. By such petitions, it was prayed that certain witnesses may be summoned and certain documents may be directed to be W.P.C.No.24769/2008 2 produced. The learned Magistrate, by the impugned order, rejected both applications. The petitioner claims to be aggrieved by the impugned order. It is prayed that powers under Section 482 Cr.P.C may be invoked to set aside the impugned order. The prayer of the petitioner may be granted, it is submitted. 3. I have been taken through the answers given by the complainant in cross-examination. It is very specifically asserted by the complainant that there are documents to prove the liability, for the discharge of which the cheque has allegedly been issued. The petitioner had wanted those documents to be produced to support his contention that the cheque was issued not for the discharge of any legally enforcible debt or liability. In the course of cross-examination, I find that there has been an unambiguous assertion that there are documents to prove the existence of such liability, for the discharge of which the cheque has allegedly been issued. I am, in these circumstances, satisfied that in any view of the matter, the prayer of the petitioner for production of documents by the complainant is justified. The accused has the burden under Section 139 of the N.I.Act to rebut the presumption and every reasonable opportunity must certainly be granted to him to adduce evidence W.P.C.No.24769/2008 3 to rebut the presumption. In the light of the submissions made by the complainant in cross-examination, I find that the interests of justice certainly demand that the complainant must be directed to produce those documents, which the complainant admitted in his cross-examination, are available. I do further note that the complainant has filed an objection wherein he admits that some of those documents called for are available with him and he has expressed his willingness to produce the original or copies of such documents. The complainant must be directed to file a detailed affidavit while producing the documents which have been called for and explaining his inability to produce documents which he has not produced. The omnibus rejection of the prayer for production of documents, I am satisfied, is not justified. 4. Coming to the prayer to summon the witness, the learned counsel for the petitioner fairly submits that the petitioner does not press the prayer now to summon the Manager of the Vijaya Bank and to direct him to produce 20 cheques. So witness No.4 cited in Ext.P3 witness list need not be summoned. W.P.C.No.24769/2008 4 5. I am satisfied that witness No.1 Muraleedharan has to be examined and the petitioner must be given an opportunity to examine the said Muraleedharan. The learned counsel for the complainant submits that the said Muraleedharan has disputes with the complainant and a litigation is pending with him. He is a relative of the accused also, it is submitted. The attempt is to fish for evidence in the litigation between the said Muraleedharan and the complainant, it is submitted. 6. All the same, I am satisfied that the prayer to examine Muraleedharan is justified. The learned Magistrate will have to zealously ensure that his cross-examination is limited to relevant facts in the instant case. The learned Magistrate can effectively prevent the attempt, if any, on the part of the accused or the said Muraleedharan to fish for irrelevant evidence in the case which may be relevant only in the litigation in between Muraleedharan and the complainant. 7. Witnesses 2 and 3 also, I am satisfied, cannot be held to be relevant witnesses. Witness No.2 is the auditor of the complainant company and I find no reason why he should be examined. Similarly, witness No.3 is stated to be an employee of the complainant. I find no specific reason to justify the W.P.C.No.24769/2008 5 insistence on such examination from the materials placed before court. 8. In the result, a) This Crl.M.C is allowed in part. b) The complainant shall produce such documents that are available with him, the production of which is demanded in Ext.P3 that is C.M.P.No.1206/2008. For such other documents which he is not able to produce, he shall file an affidavit explaining his inability. The accused shall be permitted to examine the said Muraleedharan/witness No.1. 8. I note that this prosecution under Section 138 of the Negotiable Instruments Act has been pending from 2005. Every effort must be made by the learned Magistrate to dispose of the complaint as expeditiously as possible, at any rate, within a period of three months from this date. 9. Issue copy of this judgment to the learned counsel for the petitioner who shall produce the same before the learned Magistrate. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.24769/2008 6 W.P.C.No.24769/2008 7 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007