IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 OP(C).No. 207 of 2010(O) ------------------------ IA NOS.209/2010 & 210/2010 IN OS.138/2005 of PRINCIPAL SUB COURT,THALASSERY .................... PETITIONER ------------------------------ P.K.MANOHARAN, AGED 53 YEARS, S/O.LATE P.V.BALAKRISHNAN NAIR, "RAJESWARI BHAVAN",AZHIKODE P.O., KANNUR-670009 BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU SMT.C.S.RAJANI RESPONDENT(S): --------------- P.K.KRISHNAKUMARI AGED 60 YEARS, D/O.(LATE)P.V.BALAKRISHNAN NAIR, 12/A CONTONMENT, NEAR GOVT, GUEST HOUSE KANNUR-670001 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.207 of 2010 -------------------------------------- Dated this the 6th day of October, 2010. JUDGMENT In the nature of the order I propose to pass in this petition notice to respondent is dispensed with. I heard learned counsel for petitioner. 2. Petitioner filed O.S.No.138 of 2005 in the court of learned Principal Sub Judge, Thalassery for recovery of money allegedly due to him as per a cheque allegedly executed by the respondent in his favour and dishonoured for insufficiency of funds. Petitioner had filed a criminal complaint against respondent based on the very same cheque for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) and the original of the cheque was produced along with the complaint. What is produced in the civil suit is a certified copy of the said cheque. Respondent on her part had filed a complaint before police alleging that her signature was forged in the cheque. This Court directed learned Judicial First Class Magistrate-I, Kannur to send the disputed cheque to the expert for opinion. Going by the statement in this petition the expert has given his opinion regarding the disputed signature in the cheque. But learned counsel states that the case under Section 138 of the Act is under stay. In the meantime the suit was posted for trial in the list. Thereon petitioner filed I.A.Nos.209 of 2010 and 210 of 2010 (Exts.P2 and P3) in the court of learned Sub Judge. I.A.No.209 of 2010 was to direct the expert to produce the documents based on which he had given opinion regarding disputed signature in the cheque. I.A.No.210 of 2010 was to summon the original records from S.T.No.1026 of 2005 of court of learned Judicial First Class Magistrate-I, Kannur. Both the applications were closed directing petitioner to produce certified copies. Those orders are under challenge (though copies of the orders are not produced in this petition). Learned counsel states that the case is coming up for trial on 07.10.2010 and the matter is urgent. 3. I do not find any fault on the part of learned Sub Judge in refusing to summon the original records from S.T.No.1026 of 2005. Those records are required for the disposal of that case, may be, stayed for the time being. Proper course open to the petitioner (except so far as original of the cheque is concerned) was to get certified copy of other records from S.T.No.1026 of 2005 and produce the same in the civil court in the manner provided under law. So far as original of the cheque which is required to be summoned is concerned, Rule 10 of Order XIII of the Code of Civil Procedure (for short, “the Code”) should apply. Under that provision it is open to the court to summon either on its own motion or otherwise records from any other court, the record of any other suit or proceeding and “inspect the same”. In other words summoning of original records from other courts is not for the purpose of proving the same in the way stated in I.A.No.210 of 2010 but for inspection. Petitioner could have made a request to summon the original cheque from S.T.No.1026 of 2005 under Order XIII Rule 10 of the Code so that at the time of trial the original cheque could be inspected by the court and confronted with the respondent (but not marked in evidence). It is also open to the petitioner at that stage, if found necessary to get certified photocopy of the original cheque forthwith, get it attested by the Chief Ministerial Officer of the court concerned so that said attested copy could be marked in evidence and the original cheque can be returned to the court concerned. That should be the procedure to be adopted and followed and the application which the petitioner made should have been in that line. Instead, she wanted to summon the original cheque obviously for marking the same in the civil suit which learned Sub Judge has rightly refused. 4. So far as summoning of documents from the expert is concerned, mere summoning of documents is not sufficient. If petitioner intends to examine the export on his side it is open to him to cite the expert as a witness and call upon him to produce the documents or its copy as the case may be based on which he has rendered opinion regarding signature in the cheque. Unfortunately, that is not the way I.A.No.209 of 2010 was filed and hence dismissal of that application also does not call for interference. Resultantly this petition is dismissed. But it is directed that dismissal of this petition or the dismissal of I.A.Nos.209 of 2010 and 210 of 2010 in O.A.No.138 of 2005 will not stand in the way of petitioner producing certified copy of the relevant documents from S.T.No.1026 of 2005 (except the original of the cheque involved) and proving the same in the manner provided under law. If for inspection and confronting the respondent with the same original of the cheque is required it is open to the petitioner to move appropriate application in that line before the learned Sub Judge to summon the original cheque from S.T.No.1026 of 2005 of the court of learned Judicial First Class Magistrate-I, Kannur for the said purpose and either inspected or confronted the same with respondent (but, without marking in evidence) so that, after the purpose is over learned Sub Judge shall return the original cheque to the court wherefrom it is summoned. So far as documents required to be summoned from the expert as per I.A.No.209 of 2010 is concerned it is open to the petitioner to summon the expert as a witness if such a course is found necessary and call upon the expert to produce the relevant documents (or its copy) based on which he has rendered opinion regarding signature in the cheque. Since the case is posted for trial on 07.10.2010 petitioner seeks time to file appropriate applications in the above lines. It is open to the learned Sub Judge to grant some time for the said purpose and to summon the witness as may be cited by him. THOMAS P.JOSEPH, Judge. cks