IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 Crl.MC.No. 3985 of 2011() -------------------------------------- AGAINST THE ORDER DATED 18/11/2011 IN C.M.P.NO.225/2011 IN CC.NO.126/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,PERUMBAVOOR .................... PETITIONER(S)/ ACCUSED ----------------------------------------- C.S.RAMESH,AGED 37 YEARS, S/O.SANKARAN KARTHA,PROPRIETOR, C.S.R.GRAPHICS,THANATH HOUSE, PALLIPPRAM KARA,MUDICKAL P.O, MARAMPILLY VILLAGE BY ADV. SRI.K.SUNILKUMAR SMT.K.S.JEENA REETHA RESPONDENT(S)/ COMPLAINANT & STATE -------------------------------------------------------------- 1. GEORGE KIZHAKKUMASSERI,AGED 52 YEARS, S/O.K.V.PAILY,KIZHAKKUMASSERRY HOUSE, ALLAPRA P.O,KUNNATHUNADU TALUK,PIN- 685 602 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-31. R1 BY ADV. SRI.JOHN JOSEPH(ROY) R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/12/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRMC.NO.3985/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1 COPY OF THE COMPLAINT DATED 17/08/2009 FILED BY THE 1ST RESPONDENT/COMPLAINANT BEFORE THE JFMC, PERUMBAVOOR. ANNEX A2 COPY OF THE PETITION FILED BY THE PETITIONER/ACCUSED BEFORE THE JFMC-II, PERUMBAVOOR. ANNEX A3 COPY OF THE OBJECTION DATED 03/11/2011 FILED BY THE 1ST RESPONDENT BEFORE THE JFMC-II, PERUMBAVOOR. ANNEX A4 COPY OF THE ORDER DATED 18/11/2011 IN C.M.P.225/2011 IN CC NO.126/2010 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERUMBAVOOR. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3985 of 2011 ----------------------------------- Dated this the 15th day of December 2011 O R D E R Petitioner is the accused in C.C.No.126/2010 on the file of J.F.C.M.-II, Perumbavoor. That was a complaint filed under Sec.138 of N.I.Act. The amount alleged to have borrowed by the accused is Rs.4,25,000/- . The date of lending is stated to be 15.1.2009. The evidence on the side of the complainant was completed. Thereafter the accused was questioned under Sec.313 Cr.P.C. At the defence stage, the accused/petitioner filed a petition to direct the complainant to produce certain documents namely registers, accounts etc. of the finance business conducted by the complainant. That was opposed by the complainant. After hearing both sides, the learned Magistrate dismissed the petition. 2. Learned counsel for the petitioner/accused Crl.M.C. No.3985 of 2011 -: 2 :- submits that there was no occasion for the accused to file such a petition before examination of the accused under Sec.313 Cr.P.C. In other words, such a petition can be filed only at the defence stage. It is further submitted by the learned counsel for the petitioner that the amount alleged to have been lent is Rs.4,25,000/-. The learned counsel also points out that earlier there was a complaint filed as C.C.No.1456/2005 where the amount involved was Rs.5,00,000/-. Subsequently that case was stated to have been settled between the complainant and the accused. Therefore, according to the petitioner it is highly improbable that another sum of Rs.4,25,000/- would have been lent by the complainant on 15.1.2009 as alleged in the complaint. 3. The learned counsel for the complainant would submit that no reply was sent to the statutory notice and so the present contention advanced by the accused cannot be sustained. However, to prove or probabilise whether a sum Crl.M.C. No.3985 of 2011 -: 3 :- of Rs.4,25,000/- was lent by the complainant to the accused, there must be some material. Learned counsel for the complainant would submit that a notebook was produced by the complainant to prove that aspect. It is not known what is the nature of the document; and also the relevancy and admissibility of that document. Be that as it may, the request made by the accused to produce the ledgers and accounts of the complainant's firm is to show whether he was having in his possession Rs.4,25,000/- on 15.1.2009 or on the previous dates so as to lend such a huge amount to the accused. The learned counsel for the complainant submits that there is no admission made by PW1 (the complainant) that the money was taken from the firm or business and as such no such entry would be there in the account books which are sought to be produced. That is a matter for appreciation by the court at the time of final disposal. The learned counsel for the petitioner has read out the deposition of PW1 which according to the learned Crl.M.C. No.3985 of 2011 -: 4 :- counsel would indicate that the money had actually flowed from the finance business conducted by the complainant. Considering all the aspects, I find that as the defence should not be shut out the petitioner/accused is entitled to get the documents produced by the complainant as sought for. In the result, this Crl.M.C. is allowed. The complainant is directed to produce the documents as sought for. The learned Magistrate will dispose of the matter at the earliest. N.K.BALAKRISHNAN, JUDGE. Jvt