G SUBASH CHANDRA SABU Vs. H SURESH KUMAR

JUDGEMENT

(1.) This Criminal M. C. was referred to Division Bench by the learned Single Judge alongwith O. P. No. 3484/90. Scope of S.93 of the Code of Criminal Procedure is the only question involved in this Crl. M. C. and in this judgment we are confining to the above question. Petitioner has filed a complaint before the Judicial First Class Magistrate's Court, Punalur as C.C. No. 462/90 complaining commission of fraud, cheating and misrepresentation by the accused who is partner of a firm called 'Solve Plastics, Punalur' in which petitioner was also a partner. In the above private complaint, after recording the sworn statement and after numbering the case, petitioner filed Crl. M. P. No. 3484/90 before the Magistrate's Court for search and seizure of certain documents. The documents are the account books, ledgers and other books of the firm which was taken over by the Kerala Financial Corporation in a proceeding under S.29 of the State Financial Corporation Act. The above petition was dismissed on three grounds: (1) An identical petition was rejected by the court earlier; (2) After the accused had entered appearance when the case was posted for evidence of the petitioner under S.244 Cr.P.C., petitioner has no right to file such a petition; and (3) Specific details of the files or records were not mentioned and merely stated that all the account books, ledgers and other books of the firm.

(2.) Petition filed before the Magistrate was under S.93 and 94 of the Code of Criminal Procedure. S.94 deals with search of place suspected to contain stolen property, forged documents etc. The above section can be applied only when the Magistrate is, prima facie, satisfied after enquiring that there is reason to believe that any place is used for the deposit or sale of stolen property or forged document or other objectionable articles mentioned in the section. Here, admittedly, the above section is not applicable. Petition is not regarding searching a place where stolen or forged documents are kept. There is no material available for the Magistrate in this case to believe that any such place is used for such purpose and the matter is only under S.244 stage.

(3.) As far as S.93 is concerned, relevant clause is S.93(1) which is as follows: