Rajan C.K vs Daisy Achenkunju
2021 Latest Caselaw 10869 Ker

  Crl.MC.1591/20                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                   THE HONOURABLE MR.JUSTICE V.G.ARUN

  WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943

                       Crl.MC.No.1591 OF 2020(H)

    AGAINST THE ORDER/JUDGMENT IN ST 3062/2013 OF ADDITIONAL
      DISTRICT COURT & SESSIONS COURT - II, PATHANAMTHITTA


PETITIONER/S:

                RAJAN C.K.,
                AGED 63 YEARS
                LAHETHU HOUSE, PRAKKANAM P.O., PATHANAMTHITTA
                DISTRICT - 689 652.

                BY ADVS.
                SRI.T.P.PRADEEP
                SRI.S.SREEDEV
                SRI.P.K.SATHEES KUMAR

RESPONDENT/S:

      1         DAISY ACHENKUNJU,
                MALLAPPALLIL HOUSE, CHEKKANAL MURI, OMALLOOR
                VILLAGE, OMALLOOR P.O., PATHANAMTHITTA DISTRICT -
                689 647.

      2         STATE OF KERALA,
                REP. BY PUBLIC PROSECUTOR, ERNAKULAM.


OTHER PRESENT:

                SR.PP.C.S.HRITHWIK

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD             ON
4.2.2021, THE COURT ON 31.03.2021 PASSED THE FOLLOWING:
   Crl.MC.1591/20                      2




                               V.G.ARUN, J.
                -----------------------------------------------
                      CRL.M.C.No. 1591 of 2020
                -----------------------------------------------
               Dated this the 31st day of March, 2021

                                 ORDER

The petitioner is the complainant in S.T.No.3062 of 2013 on the

files of the Judicial First Class Magistrate's Court-II, Pathanamthitta. The

complaint is filed against the 1 st respondent, alleging commission of

the offence under Section 138 of the Negotiable Instruments Act. The

allegation is that, after borrowing an amount of Rs.5 lakhs from the

petitioner, the 1st respondent executed a cheque towards discharge of

the liability, which, on presentation, was dishonoured for insufficiency

of funds. After completion of the complainant's evidence, the 1 st

accused filed an application under Section 91 of the Cr.P.C to direct the

complaint to produce the audited balance sheet of the complainant's

partnership business by name 'JR Financiers' for the years 2012-2013

and 2013-2014, audited profit and loss accounts, ITR5, Day Book for

the period from November, 2003 to March, 2013, the licence

particulars on JR Financiers etc. The petitioner filed objection

contending that his transaction with the 1st respondent has nothing to

do with his partnership business and that the amount of Rs.5 lakhs

advanced to the 1st respondent was withdrawn from the account of his

wife Aliyamma Rajan (PW3). The objection was accepted by the trial

court and the application dismissed vide Annexure-B order. Thereafter,

DWs 1 and 2 were examined on the defence side and the case posted

for final hearing. At that juncture, the 1 st respondent filed another

application to re-open the defence evidence and to produce

documents such as, complete extract of the overdraft accounts of PW3

and JR Financiers audited accounts for the years 2012-2013 and 2013-

2014, Day Book and Cash Book, Ledger, Pawn Book of JR Financiers

from its opening day onwards, till 2013 etc. The application was filed

contending that the 1st respondent had worked as Clerk/Accountant at

JR Financiers from its opening day upto the year 2013 and in that

capacity, had prepared the registers of JR Financiers and therefore,

production of the documents is essential for the just decision of the

case. By Annexure-G order, the learned Magistrate allowed the

petition. Aggrieved, this Crl. M.C is filed.

2. Learned counsel for the petitioner contended that, the learned

Magistrate having dismissed an identical application seeking

production of the very same documents, the order in allowing the

second application is patently illegal. The specific case of the

petitioner is that the amount of Rs.5 lakhs paid to the 1 st respondent

was withdrawn from PW3's account, which fact was proved by

examining the Bank Manager (PW2). Hence, there is absolutely no

purpose in producing the registers and other documents pertaining to

JR Financiers. Reliance was placed on the decision in Reghuthaman v.

State of Kerala [2016(4) KHC 166], to contend that the subsequent

petition filed by the 1st respondent is hit by the principle of res

judicata.

3. There is no representation for the 1 st respondent, in spite of

service of notice.

4. A perusal of Annexures A and F, the applications seeking

production of documents, reveals that the documents mentioned in

the two applications are the same. Therefore, I find merit in the

challenge, both on the ground of res judicata and for absence of

reasons in the order, for finding the documents to be essential for a

just decision in the case. Moreover, after dismissal of Annexure A vide

Annexure B order, the defence witnesses were examined and the

application seeking re-opening of evidence and production of

documents was filed when the case was posted for final hearing.

In the result, the Crl.M.C is allowed. Annexure G order is set

aside.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE A TRUE COPY OF THE PETITION NO.CRL.MP 4035/19 DATED 28/03/2019.

ANNEXURE B TRUE COPY OF THE ORDER DATED 22/06/2019 IN CRL.MP 4035/19 IN ST 3062/2013.

ANNEXURE C TRUE COPY OF THE PROOF AFFIDAVIT AND DEPOSITIONS OF THE DW2.

ANNEXURE D TRUE COPY OF THE DEPOSITIONS OF THE DW3.

ANNEXURE E TRUE COPY OF THE PETITION TO REOPEN THE EVIDENCE CRL MP9898/2019.

ANNEXURE E(A) TRUE COPY OF THE OBJECTION TO ANNEXURE E.

ANNEXURE F TRUE COPY OF THE PETITION TO PRODUCE THE DOCUMENTS CRL.MP 9899/2019.

ANNEXURE F(A) TRUE COPY OF THE OBJECTION TO ANNEXURE F.

ANNEXURE G CERTIFIED COPY OF THE COMMON ORDER DATED 29/01/2020 IN CRL.M.P.9898/2019 AND CRL.M.P.9899/2019 IN ST 3062/2013.