P K MANOHARAN Vs. P K KRISHNAKUMARI

JUDGEMENT

(1.) In the nature of the order I propose to pass in this petition notice to respondent is dispensed with. I heard learned counsel for petitioner.

(2.) Petitioner filed O.S.No.138 of 2005 in the court of learned Principal Sub Judge, Thalassery for recovery of money allegedly due to him as per a cheque allegedly executed by the respondent in his favour and dishonoured for insufficiency of funds. Petitioner had filed a criminal complaint against respondent based on the very same cheque for offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act") and the original of the cheque was produced along with the complaint. What is produced in the civil suit is a certified copy of the said cheque. Respondent on her part had filed a complaint before police alleging that her signature was forged in the cheque. This Court directed learned Judicial First Class Magistrate-I, Kannur to send the disputed cheque to the expert for opinion. Going by the statement in this petition the expert has given his opinion regarding the disputed signature in the cheque. But learned counsel states that the case under Section 138 of the Act is under stay. In the meantime the suit was posted for trial in the list. Thereon petitioner filed I.A.Nos.209 of 2010 and 210 of 2010 (Exts.P2 and P3) in the court of learned Sub Judge. I.A.No.209 of 2010 was to direct the expert to produce the documents based on which he had given opinion regarding disputed signature in the cheque. I.A.No.210 of 2010 was to summon the original records from S.T.No.1026 of 2005 of court of learned Judicial First Class Magistrate-I, Kannur. Both the applications were closed directing petitioner to produce certified copies. Those orders are under challenge (though copies of the orders are not produced in this petition). Learned counsel states that the case is coming up for trial on 07.10.2010 and the matter is urgent.

(3.) I do not find any fault on the part of learned Sub Judge in refusing to summon the original records from S.T.No.1026 of 2005. Those records are required for the disposal of that case, may be, stayed for the time being. Proper course open to the petitioner (except so far as original of the cheque is concerned) was to get certified copy of other records from S.T.No.1026 of 2005 and produce the same in the civil court in the manner provided under law. So far as original of the cheque which is required to be summoned is concerned, Rule 10 of Order XIII of the Code of Civil Procedure (for short, "the Code") should apply. Under that provision it is open to the court to summon either on its own motion or otherwise records from any other court, the record of any other suit or proceeding and "inspect the same". In other words summoning of original records from other courts is not for the purpose of proving the same in the way stated in I.A.No.210 of 2010 but for inspection. Petitioner could have made a request to summon the original cheque from S.T.No.1026 of 2005 under Order XIII Rule 10 of the Code so that at the time of trial the original cheque could be inspected by the court and confronted with the respondent (but not marked in evidence). It is also open to the petitioner at that stage, if found necessary to get certified photocopy of the original cheque forthwith, get it attested by the Chief Ministerial Officer of the court concerned so that said attested copy could be marked in evidence and the original cheque can be returned to the court concerned. That should be the procedure to be adopted and followed and the application which the petitioner made should have been in that line. Instead, she wanted to summon the original cheque obviously for marking the same in the civil suit which learned Sub Judge has rightly refused.