IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WP(C).No. 36826 of 2008(H) --------------------------------------- AGAINST THE ORDER DATED 27/11/2008 IN CMP 7126/2006 IN CC.743/2004 OF J.M.F.C.-I, MAVELIKKARA .................... PETITIONER: ------------------- RAJAN PHILIP, S/O.PHILIP, MELEVEETTIL SHALOM @ MELEVEETTIL HOUSE, KOLLAKADAVU, CHENGANNUR TALUK. BY ADV. SRI.S.MOHANAN. RESPONDENT: --------------------- C.P.JOHN, S/O.PHILIPPOSE, CHANDRAVIRUTHIL HOUSE, KULAKKADU MURIL, KULAKKADU VILLAGE, THIRUVALLA TALUK. BY GOVT. PLEADER SRI. GIKKU JACOB. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. R.BASANT, J ------------------------------------ W.P(C). No.36826 of 2008 ------------------------------------- Dated this the 5th day of January, 2009 JUDGMENT Petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. Aaccused was found guilty, convicted and sentenced by the trial court. The accused preferred an appeal. The learned Sessions Judge allowed the appeal in part and sent the matter back to the court below for fresh disposal. There was a direction that an application which the accused wanted to file must be disposed of by the trial court. Accordingly Ext.P5 application-C.M.P.No.7126 of 2006 was filed by the accused before the learned Magistrate. In that petition, the accused wanted the complainant to produce 3 documents enumerated as documents 1 to 3. The learned Magistrate by the impugned order, a copy of which is produced as Ext.P7, allowed the petition and directed the petitioner to produce those documents. 2. According to the petitioner, such documents are not there at all. The 1st document is an agreement entered into during October-November, 2002. According to the petitioner, no such agreement has at all been entered into. The 2nd document W.P(C). No.36826 of 2008 2 is a cheque which allegedly was issued in a transaction between the complainant and one M/s.C.V.Philipose & Sons. According to the petitioner, no such cheque has been issued at all. The 3rd document sought to be produced is a pass book which would show that such a cheque has been presented. No such cheque has been presented and the passbook will not show presentation of any such cheque. In these circumstances the petitioner is unable to comply with Ext.P7 order. It is hence that the petitioner has come to this Court to challenge Ext.P7 order. 3. It is not necessary to enter into the controversy in any greater detail. If as contended by the petitioner he has been called upon to produce documents which he does not have in his possession, it will be up to him to file an affidavit to that effect and express his helplessness before the learned Magistrate. On such affidavit being filed, appropriate further steps can be taken by the learned Magistrate. The petitioner's option to challenge Ext.P7 order along with the final order to be passed in C.C.No.743 of 2004 shall also remain unfettered. 4. With the above observations, this W.P(C) is dismissed. (R.BASANT, JUDGE) rtr/-