1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1687 OF 2009 Jayprakash A. Thakkar (Raymangie) ..Petitioner versus Atul Shamji Satra & Anr. ..Respondents Mr. Ambar Joshi for Petitioner. Ms. Seema Chopda for Respondent No. 1. Mrs. R. V. Newton – APP for State. CORAM : S. A. BOBDE, J. DATED : 1ST OCTOBER, 2009. P.C. : 1. The Petitioner has challenged the order dated 6th June 2009 passed by the JMFC IIIrd Court Kalyan in the course of prosecution under Section 138 of the Negotiable Instruments Act, by which the learned JMFC has rejected the petitioner’s application for production of certain documents under the Banker’s Books Evidence Act on the ground that the same request was rejected on an earlier stage by the same court on merits. 2. The learned counsel for the petitioner points out that on an earlier occasion, the petitioner had sought to produce documents which are part of 2 the bank record under the Banker’s Books Evidence Act since those documents were referred to by the respondent – complainant in the course of his evidence. This request was rejected by the court on 5th September 2007 by passing the following order : “The documents produced by the accused do not come under definition of Bankers Book. These documents are not prepared by the bank only. As they do not fall under the definition of Bankers Book hence application is rejected” According to the learned counsel, these documents did not have the requisite stamps of the bank and were therefore rejected as not being documents under the Banker’s Books Evidence Act. The petitioner has apparently tendered same documents bearing the seal of the bank since according to the petitioner they qualified now for being treated as documents under the Banker’s Book Evidence Act. The learned counsel for the respondent – complainant submitted that these documents with the seal of the bank were in possession of the petitioner when they were sought to be produced before the court on the earlier occasion and which request was rejected on 5th September 2007 and therefore there is no merit in the prayer made by the petitioner. 3 3. Having considered the matter it appears that the learned trial court has rejected the prayer for production of documents under the Banker’s Book Evidence Act only on the ground that earlier the court had decided the question of production of documents on merits and therefore it cannot be reopened before the same court and the only remedy which the petitioner has only to approach the appellate court. According to the learned JMFC the request for permission to produce those documents amounts to challenge of the earlier order passed by the same court. The impugned order is not sustainable since the earlier order was on the basis that the documents tendered by the petitioner were not qualified to be treated as documents under the Bankers Book of Evidence Act. This order cannot come in the way of the petitioner for producing the same documents after the seal of the bank has been put on them in accordance with the requirements of the Banker’s Book Evidence Act. The earlier decision cannot be said to bar the petitioner from tendering documents to the court in accordance with law. In any case there is no question of the application of the principles of resjudicata in criminal case in view of the judgment of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Mohan Singh & Ors. [(1975) 3 SCC 706]. 4. In the circumstances of the case, the petition is allowed. The impugned order is set aside. The trial court is directed to reconsider the 4 application and decide the same in accordance with law. The respondent – complainant shall be at liberty to raise all contentions available to him in accordance with law. Trial is expedited. (S. A. BOBDE, J.)