IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36826 of 2008(H)
1. RAJAN PHILIP, S/O.PHILIP,
... Petitioner
Vs
1. C.P.JOHN, S/O.PHILIPPOSE,
... Respondent
For Petitioner :SRI.S.MOHANAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :05/01/2009
O R D E R
R.BASANT, J
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W.P(C). No.36826 of 2008
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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/-