1. Complaint under Section 138, NI Act — Petition under Section 91, CrPC for production of audited books of account. (Para 1 , 2 )
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2026 Supreme(Online)(Ker) 65122
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.S. Dias, J
Sabu K.S – Appellant
Versus
State of Kerala – Respondent
CRL.MC NO. 6093 OF 2026
Advocates:
For the Appellants/Petitioners: S. Shanavas Khan, S. Indu, Govind H. Nair
For the Respondents: Rajesh Chakyat
For the Appellants/Petitioners: S. Shanavas Khan, S. Indu, Govind H. Nair
For the Respondents: Rajesh Chakyat
In proceedings under the NI Act, where the accused bears the onus to disprove a legally enforceable debt, if a witness volunteers to produce documents but fails to do so, an adverse inference can be drawn against that witness.
Headnote:(A) Criminal Procedure - Production of Documents - Section 91 CrPC - When a witness volunteers to produce documents during cross-examination but fails to do so, an adverse inference may be drawn against such witness. (Para 5)
(B) Negotiable Instruments Act - Section 138 - Onus of Proof - Since the onus is on the accused to prove the absence of a legally enforceable debt under Section 139, the accused is entitled to seek the best evidence available to substantiate the defense. (Para 5)
Issues: Whether the Trial Court erred in dismissing the application for production of documents under Section 91 CrPC when the witness had volunteered to produce them.
Legal Category Hierarchy
Table of Contents
2. Petitioner sought document production for defence; respondent opposed as immaterial. Trial court dismissed application. (Para 3 , 4 )
3. Witness volunteered but failed to produce document; adverse inference may be drawn. Documents relevant for petitioner's defence. (Para 5 )
4. Under Section 139, NI Act, onus on accused to rebut presumption; accused can seek best evidence for defence. (Para 5 )
5. Petition disposed; trial court directed to consider complaint expeditiously. Petitioner may let in defence evidence. (Para 5 )
6. Can a court draw an adverse inference when a witness volunteers to produce a document but fails to do so?
Yes, if a witness volunteers to produce a document but fails to do so, an adverse inference must necessarily be drawn against that witness. (Para 5 )
7. Is a document relevant under Section 91, CrPC even when the onus of proof under Section 139, NI Act lies on the accused?
Yes, since the onus of proof under Section 139 of the NI Act is on the petitioner-accused, he can seek the best evidence available to prove his defence. (Para 5 )
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.10.2026, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.S.DIAS, J.
CRL.MC NO. 6093 OF 2026
Dated this the 1st day of October, 2026
ORDER
The petitioner is the accused in S.T.No.105/2019 on the file of the Court of the Judicial First Class Magistrate -III, Alappuzha, (‘Trial Court’ in short), which has been registered on the basis of Annexure A complaint filed by the 2nd respondent alleging the commission of the offences punishable under Section 138 of the Negotiable Instruments Act, 1881, (‘NI Act’, in short).
2. It is the petitioner’s case that during the cross-examination of Manager of the 2nd respondent- company (PW1), the petitioner’s counsel had specifically put to him whether there was any audited books of account to substantiate the transaction between the petitioner and the 2nd respondent, and the income tax returns. PW1 had specifically testified that the audited books of account were is in his possession and the same reflected the transaction and that, he was ready and willing to produce the books of accounts. However, the same was not produced. Consequently, the petitioner had filed Annexure B application under Section 91 of the CrPC to direct the PW1 to produce all the documents that have been mentioned in the application and as volunteered by PW1. The 2nd respondent opposed the application. Consequently, by the impugned Annexure C order, the Trial Court has dismissed the application. The impugned order is erroneous and wrong. Hence, this petition.
3. The 2nd respondent has affidavit refuting the contention in the petition. The 2nd respondent submits that there is no error, illegality or impropriety in the impugned order warranting interference by this Court. Hence, this petition may be dismissed.
4. I have heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the 2nd respondent.
5. The petitioner specifically states that during the cross-examination of PW1, he had specifically testified that there were documents to prove the transactions between the petitioner and the 2nd respondent. It was in the said circumstances that the petitioner filed the application, which has been dismissed by the impugned order on the finding that the said document are not material for deciding the complaint. In view of Section 139 of the NI Act, the onus of proof is on the petitioner to substantiate that the cheque was not issued towards the legally enforceable debt. It is the petitioner’s specific defence that there is no legally enforceable debt payable by him. It was in the above circumstances that he filed application to direct PW1 to produce the document, as he had specifically testified that the transaction is reflected in the books of accounts of the 2nd respondent - company and that he was ready and willing to produce the document. Nevertheless, PW1 has not produced the documents before the Court. Needless to mention that, if the witness volunteers to produce the document but fails to do so, an adverse inference necessarily has to be drawn against him. No one can compel the party to produce the document. The finding of the Trial Court that the documents are not relevant in a criminal case is erroneous and unjustifiable, since the onus of proof is on the petitioner, necessarily, he can seek the for the best evidence available to prove his defence.
Therefore, it would be up to the petitioner to bring to the notice of the Trial Court, despite PW1 volunteering to produce the document, he has not produced the same and an adverse interference is to be drawn. With the above observations, this petition is disposed of, by directing the Trial Court to consider and dispose the complaint, in accordance with law and as expeditiously as possible and leaving open the right of the petitioner to let in defence evidence.
