1. By this writ petition, the petitioner accused in S.T.C. No. 164 of 2006 challenges the order dated 18.8.2009 passed by the learned Judicial Magistrate, First Class, Nan durbar rejecting application (Exh.92).

2. Briefly stated, the facts giving rise to this petition are that the present respondent is the original complainant who filed complaint against present petitioner original accused for having committed offence punishable under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code. The trial proceeded for offence under Section 138 of Negotiable Instruments Act. The petitioner accused was discharged of offence under Section 420 of IPC. The respondent complainant filed his affidavit in lieu of examination in chief and thereafter on 13.5.2009, petitioner accused filed an application (Exh.92) calling upon respondent complainant to produce books of accounts, referred to in paragraph 10 of complainant's affidavit filed in lieu of examination in chief, for verifying various entries and for cross examination purpose.

3. The said application was strongly opposed by the respondent complainant, submitting that there is no provision in the Code of Criminal Procedure, 1973, to call for the documents. It is also stated that it is the complainant's right to produce the documents as are found to be necessary and proper and if the documents are not produced by him, he cannot be compelled or directed to produce the same under criminal law. The trial court appears to have accepted this argument as in paragraph 4 of the judgment, he observed that the affidavit is already filed by the complainant along with documents which were necessary as per the complaint and the burden is on the complainant to prove his case and accused has nothing to prove and ultimately if the complainant does not wish to produce the document, he would suffer. Application (Exh.92) was therefore rejected by the learned trial judge by the impugned order and hence this writ petition.

4. On behalf of the petitioner, learned Counsel Ms. Rashmi Hardas submitted that in paragraph 10 of the affidavit in lieu of examination in chief the respondent complainant has stated that on 1.6.2002 he had debited the amount of Rs.1.50 lakhs in the name of the petitioner accused. The complainant further stated that the accounts were written by him in his hand; those were written daily. After referring to the account books he stated that the contents therein are correct. He further stated that he had brought the original account books in the court and produced office copy thereof. This affidavit is in lieu of examination in chief. It is not that the court has allowed the secondary evidence and rightly, therefore, the complainant said that he had brought original account books. The debit entry would be admissible in evidence both, under Section 32(2), so also under Section 34 of the Evidence Act. However, if we refer to both the sections, it is clear that there is rider inasmuch as the entries in the account books are admissible only if the accounts are regularly kept in the course of business. So, the condition that the books should be kept or maintained in ordinary course of business is a sideburn on before admitting the entry in evidence. What is sought to be produced on record of the court is a office copy of the relevant entry and not the entire account book in which there is entry. So, when such secondary evidence is being sought to be produced before the court and when the original was in possession of the respondent complainant, he was bound to produce the original and in his affidavit in lieu of examination in chief the complainant did say that he had brought the original. In such circumstances, the accused gets a right to demonstrate that the entries in the account books are not maintained in the regular course of business.

5. Under Chapter V of the Evidence Act, before secondary evidence can be allowed when primary is in possessio