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2014 DIGILAW 830 (MAD)

S. Bhaskar v. Uma Bhandari

2014-04-03

G.CHOCKALINGAM

body2014
Judgment : 1. This petition has been filed by the petitioner under Section 482 of the Criminal Procedure Code seeking to set aside the order passed by the learned Judicial Magistrate No.V, Coimbatore, in C.M.P.No.12214 of 2011 in C.C.No.399 of 2010, dated 22.02.2012. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent and also perused the records. 3. It is admitted by both parties that the respondent/complainant has filed a private complaint under Sections 138 and 141 of the Negotiable Instruments Act against the accused and the same is pending in C.C.No.399 of 2010 on the file of the learned Judicial Magistrate No.5, Coimbatore, and P.W.1 was examined in the said Calendar Case. After the examination of P.W.1, the accused has filed a petition in C.M.P.No.12214 of 2011 under Section 91 of Cr.P.C. to call for the records from the Indian Bank, Mananchira Branch Kozhikode branch relating to the statement of account, total number of cheque books issued to the accused, dishonour memo issued by the Mananchira branch in respect of account No.816026647 and the stop payment instructions issued by the accused for the period from 01.11.2009 to 09.12.2009 reflecting the charges deducted. The said petition was dismissed by the learned Judicial Magistrate No.5, Coimbatore. Against the order of dismissal, the present criminal original petition has been filed. 4. The learned counsel for the petitioner/accused argued that the documents, which are sought for by the petitioner/accused, are necessary to prove his case. Hence, he has filed the said petition under Section 91 of Cr.P.C. But, the trial Court, without considering the merits of the petition, simply dismissed the same stating that the accused has filed the petition only to drag on the proceedings. Except the above, there was no reason given by the learned Magistrate for dismissing the petition. Hence, the order of the learned Magistrate has to be set aside. 5. The learned counsel for the respondent/complainant argued that the complainant has filed the private complaint in the year 2010 and it is pending for a long time. It is further argued that the documents sought for by the accused under Section 91 of Cr.P.C. are of his own documents. Therefore, he can very well obtain certified copies of the documents and produce the same before the Court. It is further argued that the documents sought for by the accused under Section 91 of Cr.P.C. are of his own documents. Therefore, he can very well obtain certified copies of the documents and produce the same before the Court. Without following the above procedure, he has filed the petition only to drag on the proceedings. Hence, the order of the learned Magistrate has to be confirmed. 6. Even though the documents sought for under Section 91 of Cr.P.C. are necessary to prove the case of the accused, the question as to the admissibility of the same has to be decided by the learned Magistrate only at the time of trial. Though the learned counsel for the respondent/complainant submits that certified copies of the documents can be produced to conduct the trial on the side of the accused, the petitioner/accused has stated valuable reasons for non-production of the same. Even the delay can be compensated by awarding some cost to the other side. But, the learned Magistrate, without applying his mind, dismissed the petition under Section 91 of Cr.P.C. stating that only to drag on the proceedings the petition has been filed which is not at all maintainable. Hence, in the interest of justice, one more opportunity should be given to the accused to prove his case. Therefore, the order of the learned Magistrate is liable to be quashed. 7. Azssed by the learned Judicial Magistrate No.V, Coimbatore, in C.M.P.No.12214 of 2011 in C.C.No.399 of 2010, dated 22.02.2012, is set aside and this criminal original petition is allowed. Consequently, the connected miscellaneous petition is closed. 8. Since the case in C.C.No.399 of 2010 is pending from the year 2010, the learned Judicial Magistrate No.V, Coimbatore, is directed to dispose of the same within a period of three months from the date of receipt of a copy of this order.