M.M.Antony vs Farook. on 30 July, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 2440 of 2007()


1. M.M.ANTONY,S/O. MARTIN,
                      ...  Petitioner

                        Vs



1. FAROOK.S/O. MOOSA, PROPRIETOR,
                       ...       Respondent

2. STATE OF KERALA REPRESENTED BY

                For Petitioner  :SRI.K.L.JOSEPH

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :30/07/2007

 O R D E R
                                  R. BASANT, J.

                         - - - - - - - - - - - - - - - - - - - - - -

                          Crl.M.C.No. 2440  of   2007

                         - - - - - - - - - - - - - - - - - - - - - -

                   Dated this the  30th   day of   July, 2007


                                      O R D E R

The petitioner is the complainant in a prosecution under

Section 138 of the N.I. Act. The trial is in progress. The accused

appears to have taken up a stand that he has no dealings whatsoever

with the complainant. To disprove this, the complainant wanted a

copy of his bank account to be produced. That, according to him,

would show that there were earlier transactions between the accused

and the complainant. When the complainant was in the witness box

the complainant filed a petition. One would have expected the

complainant to apply to his bank to get the certified copy of his

account and get it duly certified under the Bankers Book Evidence

Act and then produce the same before the learned Magistrate. Instead

of doing that, the petitioner filed an application to direct the bank to

produce the certified copy of the ledger relating to his account. The

learned Magistrate surprisingly rejected the application holding that

the burden of proof under Section 139 of the N.I. Act is on the

accused and therefore the document is not relevant at that stage.

2. The learned counsel for the complainant submits that the

complainant does not want to leave anything to chance. He wants to

Crl.M.C.No. 2440 of 2007

2

prove that the defence set up by the accused is unacceptable. In these

circumstances it should not have been held that the document sought to be

produced is irrelevant. The petitioner may be given an opportunity to

summon the bank to produce the certified extract, it is submitted.

3. I do not agree that the reasons shown by the learned Magistrate

for rejection of the application are valid. It was for the petitioner to have

obtained a duly certified extract of his account from his bank under the

Bankers Book Evidence Act and produce the same. I am satisfied that the

learned Magistrate must now give the petitioner an opportunity to produce

such certified extract under the Bankers Book Evidence Act. The learned

Magistrate shall give the petitioner reasonable time to produce such

certificate to prove the same and thereafter only proceed to dispose of the

case. The petitioner must produce such document before the learned

Magistrate at the earliest – at any rate, within a period of 15 days from this

date.

4. This Crl.M.C. is accordingly dismissed with the above

observations.

Crl.M.C.No. 2440  of   2007

                                3


                                     (R. BASANT)

tm                                      Judge