CHITARANJAN Vs. JAYARAJAN

JUDGEMENT

(1.) In these Revision Petitions the very same petitioner/complainant assails the dropping of criminal proceedings initiated by him against the very same common respondent/accused in respect of two cheques under S.138 of Negotiable Instruments Act, 1881. The petitioner/complainant alleged that the respondent/accused had issued two cheques each for Rs.35,000/- with different dates for the discharge of a legally enforceable debt/liability. The cheques were dishonoured on the basis of stop memos issued by the accused. Notices of demand were issued. But they did not succeed in securing payments. It was stated in reply that the cheques for the specified amount were actually issued but they were not issued for the discharge of any legally enforceable debt/liability. The complainant came to the Court alleging the commission of the offence punishable under S.138 of N.I. Act. According to the complainant he had brought the original cheques to the Court at the time of filing the complaints and the Court had permitted him to keep originals leaving the photostat copies in the Court. This submission is strenuously disputed by the learned counsel for the respondent. Whatever that be, in Court only copies of the cheques were left. When the matter came up for trial the complainant submitted that the original cheques were lost and a crime had been registered in respect of such loss of cheques. The complainant was examined in part and the Court directed him to produce the original cheques. As he could not produce the cheques, the complainant filed affidavit to explain the circumstances under which he was not able to produce the cheques. Thereupon the learned Magistrate without proceeding further, invoking his powers under the decision reported in K. M. Mathew v. State of Kerala, 1992 (1) KLT 1 , proceeded to pass the impugned common orders directing discontinuance of the proceedings.

(2.) The respondent/accused has entered appearance. The learned counsel for the petitioner submits that there is no dispute between the parties about the facts of issue of cheques and their dishonour etc. The cheques were actually lost. In these circumstances the complainant is not in a position to produce the cheques. The counsel submits that the complainant is in these circumstances entitled to adduce secondary evidence about the cheques. As per S.65 of the Evidence Act such secondary evidence is admissible also. The learned Magistrate erred grossly in not giving such an opportunity and in terminating the proceedings. It is in these circumstances prayed the impugned order may be set aside.

(3.) The learned counsel for the respondent submits that the theory of loss of cheques is unacceptable. He asserts that the cheques were not produced at the first instance and it is clearly shown that it was not a case of loss of cheques. It is in these circumstances submitted that the impugned order does not warrant interference.