IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH JUNE, 2011 / 3RD ASHADHA ,1933 Crl.MC.No. 1491 of 2011 -------------------------------- (CMP NO.190/2011 IN S.T.NO.51/2011 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-III, KANJIRAPPALLY) PETITIONER(S): ACCUSED --------------------- K.I.RASHEED, AGED 51, S/O.HAJI IBRAHIM KUTTY, KALLUMKAL HOUSE, KOVILKADAVU, KANJIRAPALLY. BY ADV. SRI.K.A.HASSAN SMT.JULIA PRIYA RESHMY RESPONDENTS(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SASURAJ & COMPANY, KANJIRAPALLY, REPRESENTED BY ITS PARTNER CHERIAN S.JOSEPH, S/O.SALI CHERIAN, CHEERANVELIL, KANJIRAPALLY. BY ADV. SRI.BECHU KURIAN THOMAS FOR R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND FOR R1. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX (PETITIONERS' EXHIBITS) (CRL.MC NO.1491 OF 2011) Annexure-I: Copy of the petition filed before the JFMC-I Annexure-2: Copy of the Chief Proof Affidavit. Annexure-3: Copy of the schedule of document. Annexure-4: Copy of the certificate issued by the Service Co-operative Bank, Kanjirappally. Annexure-5: Certified copy of the impugned order in ST No.51/2011 by JFMC-3. Annexure-6: Copy of the complaint filed beforee the JFCM Court, Kanjirappally. -true copy- : V.K.MOHANAN, J. ---------------------------------------- Crl.M.C.No. 1491 of 2011 ---------------------------------------- Dated this the 24th day of June, 2011 ORDER Challenging the order dated 27.4.2011 of the court of the Judicial First Class Magistrate-III in CMP No.190/2011 in S.T.No.51 of 2011, the revision petitioner/accused, who is facing prosecution for the offence under Section 138 of the N.I.Act, preferred this revision petition as his prayer for issuing summons under Section 91 of CR.P.C. is declined by the learned Magistrate. 2. Heard the counsel for the petitioner as well as the respondents. 3. S.T.No.51 of 2011 is instituted upon a private complaint filed by the second respondent herein against the revision petitioner for the offence under Section 138 of the N.I.Act. On filing the proof affidavit by the complainant, the petitioner/accused therein approached the trial court by filing Annexure 1 petition seeking direction from the court below directing the persons, who are the Crl.M.C.No.1491 of 2011 :-2-: custodians of the documents, whose names and details are mentioned in the schedule appended to Annexure-I petition, to produce the above documents and otherwise, according to the petitioner, the non- production of such documents will adversely affect the defence. In paragraph 4 of the above petition, it is stated that the revision petitioner/accused apprehends that the original cheque in respect of the certificate mentioned as item No.3 in the schedule and other items stated as 4 and 5 therein are likely to be forged or defaced at the hands of the custodians who kept those items in their custody with the connivance of the complainant and his father, who are having much influence in the bank officials. 4. The learned Magistrate, after considering the petition, by the impugned order declined the request holding that the petition does not disclose that the documents sought to be produced are highly necessary or desirable for the purpose of trial. It is also found that the said petition was filed only with the intention to protract the case Crl.M.C.No.1491 of 2011 :-3-: against the revision petitioner/accused. The learned Magistrate has also found that no supporting affidavit is seen filed. It is the above order challenged in this Crl.R.P. 5. Counsel for the petitioner submitted that against the very same revision petitioner, three cases are pending in various courts and in order to substantiate the defence of the accused in the present case, the above document is necessary. According to the learned counsel, Annnexure 4 certificate is false and the petitioner has not received any amount mentioned therein and the cheque mentioned therein is a forged one. Thus, according to the learned counsel, the order of the learned Magistrate is liable to be set aside. 6. I am unable to sustain the above contentions. The specific case of the complainant is that the accused borrowed Rs.5 lakhs from the complainant and the said amount was paid to the accused through cheque as mentioned in Annexure 4 certificate. According to the complainant, the said cheque was encashed by the accused by Crl.M.C.No.1491 of 2011 :-4-: presenting the same through the account of the accused and the entire transaction is evident by the records. It is the further case of the complainant that towards the discharge of the said liability, the accused issued three cheques and one cheque is dated 12.2.2009 for Rs. 1 lakh which is covered in S.T.No.51/2011 and the other two cheques are for Rs.2 lakhs each. During the hearing of this revision petition, the learned counsel submitted that without producing the cheque mentioned in Annexure 4 certificate, the accused will not be in a position to cross-examine PW1. Having regard to the facts and circumstances involved in the case and particularly, in the light of the allegations against the accused and in view of the defence of the accused, I am of the view that summoning of those cheques and documents is not necessary to cross-examine the complainant. Even if the defence has got a case that the cheque mentioned in Annexure 4 is a forged one, the same can be established at the time of evidence of the accused or at any appropriate stage of trial by summoning the Crl.M.C.No.1491 of 2011 :-5-: officials of the bank of the complainant as well as the accused, if it is so advised or even if the circumstances demand after recalling the complainant. It appears that the proposed defence of the accused is that there was no passing of consideration and in order to establish the same, the summoning of cheque covered by Annexure 4 is absolutely unwarranted. That being the position, I find no reason to interfere with the findings of the courts below that the present petition is to protract the trial against the revision petitioner/accused. In the result, I find no merit in the Crl.M.C. and accordingly the same is dismissed. V.K.MOHANAN, Judge MBS/ Crl.M.C.No.1491 of 2011 :-6-: V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:.. Crl.M.C.No.1491 of 2011 :-7-: