IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.MC.No. 394 of 2011() ----------------------------------- CC.NO. 817/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS-II, HOSDURG .................... PETITIONER(S): ------------------------ K.AZEEZ, S/O.MUHAMMED HAJI, KANNAMKULAM(H),NEAR A.M.L.P.SCHOOL, KARIPODI, BEKAL PO, KASARAGOD DISTRICT, PIN-671 318. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.K.SHAJAHAN, S/O.MUHAMMADKUTTY,PAKKINIKADATHIL HOUSE, KALADITHARA, SUKAPURAM P.O,EDAPPAL, MALAPPURAM DISTRICT-679 576. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R2 BY ADV. SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.394 of 2011 ==================================== Dated this the 22nd day of March, 2011 O R D E R Petitioner is accused in C.C. No.817 of 2009 of the court of learned Judicial First Class Magistrate-II, Hosdurg for offence punishable under Section 138 of the Negotiable Instruments Act. That case arose on a complaint preferred by second respondent alleging that the cheque issued by the petitioner for a legally enforceable debt/liability was dishonoured for insufficiency of funds and in spite of dishonour intimation and demand petitioner did not pay the amount due. According to the petitioner there was no such transaction in 2009 nor issue of any cheque. Instead he contended that he had several transactions with the second respondent while being abroad and in connection with those transactions the second respondent had obtained signed blank cheques from him. An agreement was executed by his wife in favour of the second respondent for sale of property. In the course of evidence second respondent denied that there was any such agreement between himself and the wife of petitioner. He denied that there was any agreement in which his witness, P.W.2 was an attester. P.W.2 was confronted with the agreement (its CRL.M.C. No.394 of 2011 -: 2 :- photocopy is Annexure-I). He denied that he signed the said agreement. He admitted that his Passport and application for issue of issue of Passport would show his original signature. Thereon petitioner filed Annexure-III, petition to summon the Passport and application for issue of Passport from the Passport Office. Purport of that application was to prove from the documents called for that signature in the disputed agreement is that of P.W.2. Learned Magistrate without going into the details observed that the Passport Officer is not a party to the litigation and hence no such direction could be issued and accordingly the application was dismissed by Annexure-IV, order which is under challenge. Learned counsel contended that production of the documents is necessary to prove the case of petitioner and to disprove version of P.W2. 2. Learned counsel for the second respondent contended that there is no relevance for the agreement relied on by the petitioner since admittedly the second respondent is not a party to the said agreement. 3. I have gone through Annexure-IV, order. True it lacks proper reasoning. The mere fact that Passport Officer is not a party could not have been a reason for rejection of the application CRL.M.C. No.394 of 2011 -: 3 :- if it were otherwise allowable. But in considering whether interference with Annexure-IV, order is required I must understand the purport of Annexure-III, petition. Learned counsel for petitioner has read to me the evidence of P.W2. He denied that he signed Annexure-I, agreement. May be that production of documents requested by petitioner would show that the said contention of P.W.2 is not correct. But I am concerned with the relevance of Annexure-I, agreement. It is not disputed that the second respondent is not a signatory to Annexure-I, agreement. Assuming that there was any such agreement executed by the wife of petitioner and signed by P.W2 that does not in any way bind the second respondent. In that view of the matter summoning of the documents requested in Annexure-III, is unnecessary. Hence I do not find reason to interfere with the ultimate order passed by the learned Magistrate though not for the reasons stated by the learned Magistrate. Criminal Miscellaneous Case fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv