IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 28605 of 2006(E) -------------------------- PETITIONER(S): ACCUSED ---------------------- P.RAMACHANDRAN, S/O.PEETHMBARAN, AGED 36 YEARS, AYYANKOIKKAL HOUSE, KANNAMPALLY- BHAGOM, KAYAMKULAM. BY ADV. SRI.P.SREEKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- 1. MAHARASHTRA APEX CORPN.LTD.,(PUB.LTD.CO. INCORP. UNDER THE PROVISIONS OF THE INDIAN CO. ACT HAVING ITS REG.OFF.AT SYNDICATE(H),MANIPAL &HAVING BR.OFFS.AT VARIOUS PLACES INCLUDING KOLLAM)REP. BY BHARGAVAN, S/O.PARAMU, DEV.OFFICER, KOLLAM BRANCH, SHAHINA MANZIL, QS RD., KOLLAM. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY GOVERNMENT PLEADER SRI.GIKKU JACOB ADV. SRI.P.SHRIHARI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ W.P(C). No.28605 of 2006 ------------------------------------- Dated this the 2nd day of January, 2009 JUDGMENT Petitioner faces indictment in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. The original of the said cheque is not available and the complainant has produced a copy of the said cheque and has marked the same as Ext.P1. Ext.P1 was permitted to be marked on the plea that the original of Ext.P1 is irrecoverably lost. 2. The petitioner has a definite case that the cheque was not issued for the due discharge of any legally enforcible debt/liability. According to the petitioner, a signed blank cheque had been handed over to the complainant to enable him to make payment of insurance premium. That cheque has been misutilised to create the original of Ext.P1. 3. It is submitted at the Bar that in the course of cross examination of witnesses of the complainant, admission was made by a witness that a blank signed cheque has been received for payment of insurance premium. According to the petitioner, it is that blank signed cheque which has now been presented as the original of Ext.P1. If the complainant has a case that Ext.P1 W.P(C). No.28605 of 2006 2 was handed over as a completely filled up one and another cheque was handed over as a blank signed cheque for payment of premium, it must be possible for the complainant now to produce the blank signed cheque. 4. Hence at the stage of defence evidence, the petitioner filed an application that the complainant may be called upon to produce the blank signed cheque which was admittedly received by him from the petitioner for payment of premium. 5. The complainant took the stand that the original of Ext.P1 is irrecoverably lost. In the objection filed to the petition, the complainant took the stand that no other cheque is available with the complainant. In these circumstances the impugned order was passed by the learned Magistrate holding that there is no point in directing the complainant to produce the 2 cheques, the original of Ext.P1 having allegedly been lost irrecoverably and no other cheque being allegedly available with the complainant. In the light of that stand taken by the complainant, the learned Magistrate felt that it was not necessary to direct the complainant to produce the original of Ext.P1 or the other blank signed cheque which was allegedly handed over by the petitioner to the complainant. W.P(C). No.28605 of 2006 3 6. The petitioner claims to be aggrieved by the impugned order. The petitioner contends that the witness had admitted that a blank signed cheque has been handed over for payment of premium and if that were not the one made use of to create the original of Ext.P1, the complainant must be in a position to produce that blank signed cheque. 7. I have considered all the relevant aspects. As according to the complainant the original of Ext.P1 has been irrecoverably lost, there is no point in directing the complainant to produce the original of Ext.P1. Coming to the other signed blank cheque leaf, the handing over of which, it is submitted, has been admitted by a witness of the complainant, the complainant now takes the stand that such a cheque is not available. In these circumstances, there is no point in directing the complainant to produce that cheque also. The learned Magistrate was, in these circumstances, justified in not issuing any direction to the complainant. In these circumstances, I am satisfied that the impugned order does not warrant interference. 8. But this is not to say that the petitioner cannot advance his contention before the learned Magistrate and request the learned Magistrate to draw appropriate inferences in W.P(C). No.28605 of 2006 4 the circumstances of the case. The petitioner can raise the contention that the original of Ext.P1 is not lost and is being withheld with maafide motives. He can contend that the blank signed cheque has been made use of to create the original of Ext.P1. He can also contend that the blank signed cheque which is admittedly handed over by him to the complainant is not being produced because that has been misutilised to create the original of Ext.P1. Those contentions will have to be considered by the learned Magistrate on merits in the light of the totality of circumstances and appropriate decision taken. 9. With the above observations, this Writ Petition is dismissed. (R.BASANT, JUDGE) rtr/-