Kerala High Court
Ajith Prasad vs Megha Granites & Tiles on 6 July, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
OP(CRL.) NO. 268 OF 2021
AGAINST THE ORDER IN CMP NO.4935 OF 2020 DATED 30.03.2021 IN CC
NO. 3480/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I.ACT
CASES) ERNAKULAM
PETITIONER/ACCUSED
AJITH PRASAD,
AGED 50 YEARS,
S/O.PARAMESHWARAN, CMC 11, PUTHENPURAYIL,
CHERTHALA P.O., ALAPPUZHA.
BY ADV. SRI.T.KABIL CHANDRAN
RESPONDENTS/COMPLAINANT & STATE:
1 MEGHA GRANITES & TILES,
DOOR NO. VI/192 B1, ATHANI, MUNDAMPALAM ROAD, KAKKANAD,
THRIKKAKARA, PIN-682 021,
REPRESENTED BY ITS MANAGING PARTNER MR.SOJAN PAUL.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682 031.
R1 BY ADVS.SRI.K.A.RASHEED
SRI.P.M.HARIS (POOTHULIL)
R2 BY SENIOR PUBLIC PROSECUTOR SRI.RENJITH GEORGE
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06.07.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P(Crl) No.268 of 2021
2
JUDGMENT
Dated this the 06th day of July, 2022
This petition is filed under Article 227 of the Constitution
of India seeking to set aside an order passed by Judicial First
Class Magistrate Court (N.I.Act Cases) Ernakulam (for short
the court below) dismissing an application filed by the petitioner
under Section 91 of the Code of Criminal Procedure, 1973 (for
short 'the Cr.P.C.') seeking for production of some documents
for the purpose of marking it in evidence. The copy of the
application filed before the court below is produced alongwith
the petition on hand as Ext.P5. The following are the
documents called for.
"1.2013 നവംബർ മാസം മുതൽ 2014 മാർച്ച് മാസം
വരെയുള്ള KVAT Returns ന്റെ പകർപ്പ്
2. 2013-2014 സാമ്പത്തിക വർഷത്തിലെ KVAT ന്റെ
Annul Returns ന്റെ പകർപ്പ്
3. 2013 നവംബർ മാസം മുതൽ 2014 മാർച്ച്
മാസം വരെയുള്ള Sales Register ന്റെ പകർപ്പ്
4. 2013-2014 സാമ്പത്തിക വർഷത്തിലെ
Audited Balance sheet, Profit and Loss
Account and Schedule ഇവയുടെ പകർപ്പ്."
O.P(Crl) No.268 of 2021
2. The court below has passed the impugned order
stating the reason that the KVAT returns called for will not
reflect any specific transaction to help the accused to establish
his defence. Court below has also relied on the dictum of the
Apex Court in Chandel Vs. M/s.Wockhardt Ltd. [2020 (1) KLT
660] which reads that "the books of account may be relevant in
a civil suit but not in a criminal prosecution under Sec 138 of
the NI Act", to dismiss the application.
3. It is contended by Sri.T.Kabil Chandran, the learned
counsel for the petitioner that during cross examination, PW1
has admitted that the documents called for are available with
him. According to him, admittedly of PW1, the entries
regarding the transaction alleged by him are there in the
register called for. According to him the accused had taken the
defence in the prosecution on hand that the disputed cheque
was not related to the transaction as alleged by the
complainant, but one given as security by the petitioner in a
transaction involving liability of his brother and the entire
liability has already been discharged by the debtor. According to
O.P(Crl) No.268 of 2021
him the cheque given as security was retained by the
complainant and misusing it the prosecution was launched.
4. This Court has read the deposition of PW1 produced
alongwith the petition on hand and convinced of the
submissions made as above.
5. In the above context that he had cross examined
PW1 by putting it to him, whether the transaction alleged by
the complainant can be seen from the documents called for
and PW1 has spoken in the affirmative. In the above
circumstances, it appears to this Court that document Nos.3
and 4 are relevant for the purpose of the case.
In the result, O.P.(Crl.) is allowed in part. The impugned
order to the extent it declined to pass an order directing
production of documents 3 and 4 is set aside. The court below
shall call for documents 3 and 4, mentioned in Ext.P5 for
making use by the petitioner in defence.
Sd/-
MARY JOSEPH
JUDGE
MJL
O.P(Crl) No.268 of 2021
APPENDIX OF OP(CRL.) 268/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE COMPLAINT IN CC
NO.3480/2016 PENDING ON THE FILES OF
JUDICIAL FIRST CLASS MAGISTRATE COURT (NI
ACT CASES) ERNAKLUAM.
EXHIBIT P2 THE TRUE COPY OF THE INVOICE DATED
12/11/2013 FOR AN AMOUNT OF RS.44,825/-
EXHIBIT P3 THE TRUE COPY OF THE INVOICE DATED
13/11/2013 FOR AN AMOUNT OF RS.28,808/-
EXHIBIT P4 THE TRUE COPY OF THE DEPOSITION OF PW1
ALONG WITH PROOF AFFIDAVIT.
EXHIBIT P5 THE TRUE COPY OF THE PETITION FILED UNDER
SEC.91 CRPC.
EXHIBIT P6 THE TRUE COPY OF THE PETITION FILED UNDER
SEC. 311 OF CRPC.
EXHIBIT P7 THE CERTIFIED COPY OF THE ORDER IN CMP
NO.4935/2020 IN CC NO.3480/2016 PENDING ON
THE FILES OF JUDICIAL FIRST CLASS
MAGISTRATE COURT (NI ACT CASES), ERNAKULAM.
RESPONDENTS' EXHIBITS: NIL
TRUE COPY
PA TO JUDGE
