Accused in a Section 138 NI Act cheque-dishonour case challenged the Magistrate's order on her application seeking production of chitty-related documents. The complainant claimed possession of only one document; the High Court found the petition lacked merit and dismissed it.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 12TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945
OP(CRL.) NO. 47 OF 2024
AGAINST THE ORDER DATED 24.11.2023 IN CMP NO.538/2023 IN CC
NO.677 OF 2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA
PETITIONER:
RASIYA
AGED 42 YEARS
W/O NOUSHAD, KONDAPPILLY HOUSE, PARAKKAD ROAD,
MILLUPADY, MUPPATHADOM P.O.,
ERNAKULAM, PIN - 683110
BY ADVS.
BIMALA BABY
JINO JOSE
RESPONDENTS:
1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2SUNIL LAWRENCE
S/O LAWRENCE, PROPRIETOR, MALIECKAL CHITTY FUND,
BANK JUNCTION ALUVA, PIN - 683101
R1 BY SRI.G.SUDHEER-PUBLIC PROSECUTOR
BY ADV Rajiv Nambisan A N
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J
O.P(Crl.) No.47 of 2024
Dated this the 12th day of March, 2024
J U D G M E N T
The prayers in this Original Petition are as follows:
“……….to allow this petition by setting aside the order in Criminal Miscellaneous Petition No.538/2023 in C.C.No.677/2017 on the files of Honourable Judicial First Class Magistrate Court-I, Aluva dated 24.11.2023 and to reconsider Criminal Miscellaneous Petition No.538/2023 in C.C.No.677/2017 on the files of Honourable Judicial First Class Magistrate CourtI, Aluva for fresh consideration and disposal.”
file of the Judicial First Class Magistrate Court I, Aluva.
Negotiable Instruments Act. The complainant is the proprietor of a
firm by name “Maliakkel Chits Fund”. The complainant alleges that
the accused and her husband joined a chitty in the year 2013 for an
amount of Rs.5,00,000/- and the chitty was prized in favour of the accused and the accused received an amount of Rs.3,50,000/- on
O.P(Crl.) No.47 of 2024
3
1.8.2013. At the time of receiving the amount, the accused had
executed the cheque in question.
transaction with the complainant as alleged and she returned the entire amount due to the complainant.
No.538/2023 under Section 91 of Cr.P.C seeking production of the following documents:
7. The complainant filed objection stating the following:
“The above said petition is not maintainable either on law or on facts and circumstances. The first document sought to be produced was already produced and marked as Ext.P5 from the side of the complainant. The second document is with the accused. Because it is the original pass book and that will always be with the subscriber of the chitty. Among the third document, the chitty form by which the accused and her husband Noushad joined in the chitty can be produced. Fourth document is not in the possession of the complainant because the complainant has stopped the chitty
O.P(Crl.) No.47 of 2024
4
business for years and the old records are missing after the deluge that hit Aluva and suburbs in 2018. More over the main defence of the accused is that she has not joined in the chitty conducted by the accused and if that be so statement of account of chitty of the accused has of no use for her. As far as the fifth document is concerned, it also is missing and that is why the complainant examined PW3 to prove the factum of dishonour of cheque issued by the accused on its presentation before drawee bank.
Considering all it is humbly prayed that this complainant may be exonerated from the onus of producing the documents enlisted in the petition except the third document (chitty form) or else irreparable injuries and hardship may cause to the complainant.”
contentions disposed of the petition recording that the complainant will produce item No.3 in the documents mentioned above. The learned counsel for the petitioner submitted that the order impugned is liable to be set aside and the complainant is to be directed to produce the
documents. The complainant has specifically stated in the objection that he is in possession of only item No.3 in the documents mentioned
above. The document No.1 sought to be produced was marked as Ext.P5. Document No.2 is in the possession of the accused. The
complainant agreed to produce document No.3. The complainant
further stated that document No.4 mentioned above is not in his
possession as he had stopped the chitty business years back and that
O.P(Crl.) No.47 of 2024
5
he is not maintaining the old records relating to the chitty transaction.
The complainant further stated that document No.5, the dishonour
memo is missing and therefore, he had to examine PW3 to prove the factum of dishonour of the cheque.
The Original Petition, therefore, lacks merit and it stands dismissed.
Sd/K.BABU JUDGE
ab
O.P(Crl.) No.47 of 2024
6
APPENDIX OF OP(CRL.) 47/2024
PETITIONER EXHIBITS
Exhibit P1TRUE COPY OF THE COMPLAINT FILED BY THE
COMPLAINANT/ RESPONDENT FILED AS CRL.MP
ANDSUBSEQUENTLYNUMBEREDAS
C.C.677/2017
Exhibit P2TRUE COPY OF THE CHIEF & CROSS
EXAMINATION OF THE RESPONDENT NO.2 (PW1)
DATED 27/8/2022
Exhibit P3TRUE COPY OF THE C.M.P NUMBERED 538/2023
IN C.C. 677/2017
Exhibit P4TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT TO THE C.M.P NUMBERED
538/2023 DATED 17/11/2023
Exhibit P5TRUE COPY OF THE ORDER OF JUDICIAL FIRST
CLASS MAGISTRATE COURT - I, ALUVA DATED
24/11/2023 IN CMP 538/2023
RESPONDENTS EXHIBITS: NIL
1 issue framed by the court
Whether the Magistrate's order directing production of only one of five documents sought under Section 91 Cr.P.C in a cheque-dishonour trial should be set aside.
2 provisions across 2 enactments
Rasiya
State of Kerala
Sunil Lawrence
K. Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court