1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2934 OF 2009 WITH CRIMINAL WRIT PETITION NO.778 OF 2010 Time Co-operative Credit Society Ltd. ..... Petitioners. V/s Anjum Mohd Hussain & Anr. ..... Respondents. Mr. Hakim Salim i/b Mr. Dinesh Guchiya for Petitioners. Mr. Rakesh Kumar i/b Mr. Virendra Jabra for respondent No.1. Mrs. P.P. Bhosale APP for the State. CORAM: V. M. KANADE, J. DATE : 22nd March, 2010 P.C.:- 1. Heard the learned Counsel for Petitioners and the learned Counsel for Respondents. 2. By these Petitions, Petitioners who are original complainants are challenging the order passed by the Metropolitan Magistrate in C.C. No.418/S/2006 whereby application filed by respondent No.1 – accused for production of original documents was allowed. Petitioners challenged this order before the Sessions Court by filing Revision Application. The Sessions Court dismissed the Revision Application on the ground that Revision is filed against the interlocutory order and therefore it is not maintainable and the order of the 2 Sessions Court is, therefore, separately challenged by filing separate Writ Petition. 3. Petitioners herein are a Co-operative Credit Society and it is the case of Petitioners that they had given some credit facility to Respondent No.1 and for repayment of the said amount which was withdrawn by Respondent No.1, he had given a cheque for an amount of Rs 25 lakhs and the said cheque was dishonoured after it was deposited by Petitioners in their bank. A complaint under section 138 of the Negotiable Instruments Act was filed after statutory notice was given to the accused. A process was issued and the respondent No.1 – accused filed an application for production of certain documents. In the said application, it was alleged by the accused that the complainant was a ghost society and it was not registered with any of the concerned Wards of the Co- operative Department and that the amount demanded was not due and payable to the Society and for the purpose of proving the said facts, it was necessary to ask the Society to produce the original documents. The list of 16 documents was mentioned in the said application. 4. The learned Counsel appearing on behalf of Petitioners submitted that the learned Magistrate has erred in allowing the said application. He submitted that most of the documents mentioned in the said list are not relevant for the purpose of trial and the said list has been provided only for the purpose of harassing the complainant and for prolonging the 3 trial. 5. I have perused the said list of documents. In my view, the accused is entitled to ask the Society to produce the documents in view of the defence which has been raised by him in his application and the Society has to produce those documents which are in their possession. It is always open for the Society to point out that certain documents which are mentioned in the said list are not available. It is a well settled position in law that initial burden under section 139 of the Negotiable Instruments Act is on the accused and for the purpose of discharging the said burden the accused has to lead evidence in rebuttal which can be done by making suggestions to the complainant in cross-examination and by production of certain documents. This being the position, there is no infirmity in the order passed by the learned Magistrate. 6. No case is therefore made out by Petitioners for interfering with the order passed by the learned Magistrate while exercising writ jurisdiction of this Court under Article 227 of the Constitution of India. Both the Petitions are accordingly dismissed. (V.M. KANADE, J.)