IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 Crl.MC.No. 1879 of 2007() ------------------------- CC.1381/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... PETITIONER: --------------- JOSEPH MATHEW @ SUNNY MATHEW, KURISINGAL HOUSE, MANASSERY, MUNDAMVELI P.O., KOCHI-7. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: --------------- 1. THE KERALA VYAPARI VYAVASAYA EKOPANA SAMITHY, THOPPUMPADY UNIT, REPRESENTED BY ITS SECRETARY, MR.JAYAPRAKASH. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1879 of 2007 ORDER ON CRL.M.A.2920/2007 IN CRL.M.C.NO.1879/2007 DISMISSED. 18.3.2009 SD/-P.S.GOPINATHAN, JUDGE // TRUE COPY // P.A TO JUDGE. P.S.GOPINATHAN, J. --------------------------- Crl.M.C.No.1879 of 2007 ----------------------------- Dated this the 18th day of March, 2009 O R D E R The petitioner is the accused in C.C.No.1381/2004 on the file of the Judicial First Class Magistrate -II, Kochi. The 1st respondent herein prosecuted the petitioner before the lower court for offence punishable under Section 138 of the Negotiable Instruments Act with a plea that the petitioner owed a sum of Rs.82,750/- to the 1st respondent for the discharge of which a cheque dated 12.5.2004 for the said amount drawn on State Bank of India, Panayappilly Branch was issued and that when it was sent for collection it was dishonoured for insufficiency of funds and that despite the notice issued, the petitioner did not discharge the liability. 2. After taking cognizance, the learned Magistrate issued process to the petitioner responding to which he entered appearance. On appearance, copy of the complaint was served to the petitioner and then the particulars of the offence were read and explained to which he pleaded not guilty. Hence he was sent for trial. During the course of trial, 1st respondent was examined as PW1 and Exts.A1 to A11 were marked. Crl.M.C.No.1879 of 2007 2 3. In the evidence it was stated by the PW1 that the 1st respondent had been managing a welfare fund and that the petitioner who was a member had availed benefit from the welfare fund and a sum of Rs.82,750/- was due to the fund from the petitioner and that it is in discharge of the said liability, the cheque in dispute was issued and that the application submitted by the petitioner, the copy of the minutes which passed the application, statement of accounts showing the payment and discharge of the portions of the liability and counter foil of the cheque by which the amount was paid to the petitioner were in the office. The case of the petitioner is denial. After closing the evidence for the prosecution, the petitioner was questioned under Section 313 of Code of Criminal Procedure and he was called upon to adduce evidence in defence. At that stage, he filed Annexure 2 petition seeking an order to direct the 1st respondent to produce the documents listed in Annexure 3. Along with Annexure 2, Annexure 4 petition was filed under Section 311 of the Code of criminal Procedure to reopen the evidence and to recall PW1 to confront with the documents listed in Annexure 3. Learned Magistrate by Annexures 5 and 6 orders dismissed Annexures 2 and 4 petitions. It is assailing Annexures 5 and 6, Crl.M.C.No.1879 of 2007 3 this petition was filed. 4. Though notice was served on the 1st respondent, he did not enter appearance. Learned counsel for the petitioner as well as the Public Prosecutor were heard. 5. On going through the evidence on record to which I was taken by the learned counsel for the petitioner, it is seen that the very case of the 1st respondent is that amount due as per the cheque was issued in pursuance of an application filed by the petitioner and that application was considered and passed by the committee. Document listed in Annexure 3 are the minutes book, statement of accounts and counter foil of the cheque. On going through the evidence of PW1, if he is telling truth, these documents would show that there was actual payment as alleged by the 1st respondent. These documents are in the possession of PW1. He has no case that the documents couldn't be produced for any valid reason. In a prosecution under Section 138 of the Negotiable instruments Act, the complainant can canvass for presumption under Sections 118 and 139 of the Negotiable Instruments Act. Then it is the burden of the accused to rebut the same. Having due regard to the nature of the complaint and defence advanced that there was no transaction alleged, I find Crl.M.C.No.1879 of 2007 4 that the documents listed in Annexure 3 are relevant documents for rebutting the presumption under Sections 118 and 139 of the Negotiable Instruments Act. There is nothing to show that the documents would any way cause prejudice to the accused. On the other hand, if these documents do not support the evidence of PW1, it may be to the rescue of the petitioner for an acquittal. The learned Public Prosecutor fairly conceded that the documents relied upon by the petitioner cannot be termed as irrelevant. On going through the impugned order it is seen that the learned Magistrate apprehended that these documents if called upon may turn prejudicial to the accused. According to the learned counsel for the petitioner, the documents would no way be prejudicial to the petitioner. But it would prove the case of the petitioner that there was no transaction as deposed by PW 1. He also canvassed my attention to the decision of T.Nagappa v. Muralidhar (2008 (5) SCC 633) wherein it was held by the Apex Court in paragraph 9 that “it is the accused who knows how to prove his defence”. According to the learned counsel, the petitioner who was the accused, knowing fully to prove the defence, requested assistance of the court to call for the documents and it was rejected with no good reason. Having heard either side, I fail to Crl.M.C.No.1879 of 2007 5 find that the documents relied upon by the petitioner would any way prejudice the petitioner. There is nothing on record to show that this petition was filed to protract the proceedings or there is lack of bonafides in calling for the documents. The apprehension of the magistrate that the documents may turn prejudicial to the petitioner is without any basis. It appears that the learned Magistrate omitted to note that the petitioner was defended by a lawyer. There is nothing to suggest that the petitioner was ill advised. In the above circumstances, I find that the learned Magistrate went wrong in rejecting the request of the petitioner. The impugned orders are thus vitiated and it would cause prejudice to the accused and would deny justice. Hence it is liable to be set aside. In the result, this Crl.M.C is allowed. Annexures 5 and 6 orders are set aside and petitions Annexures 2 and 4 before the lower court would stand allowed. The lower court is directed to dispose of the case at the earliest. P.S.GOPINATHAN, JUDGE. bkn/-