Relevant documents under Section 91 of the Cr.P.C. must be permitted to be produced if they may assist in establishing a defense in criminal proceedings.

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 മാർ്ᨴ് മാസം

വരെ(cid:15)യു്ᩦ KVAT Returns രെ(cid:18) പകർ്ᩔ്

2. 2013-2014 സാ്ᩘ്ᩈിക വർഷ്ᩈിരെ(cid:26) KVAT രെ(cid:18)

Annul Returns രെ(cid:18) പകർ്ᩔ്

3. 2013 നവംബർ മാസം മുതൽ 2014 മാർ്ᨴ്

മാസം വരെ(cid:15)യു്ᩦ Sales Registerരെ(cid:18) പകർ്ᩔ്

4. 2013-2014 സാ്ᩘ്ᩈിക വർഷ്ᩈിരെ(cid:26) Audited Balance sheet, Profit and Loss Account and Schedule ഇവയുരെ(cid:28) പകർ്ᩔ്.”

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 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

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