R DHANASEKARAN Vs. N DHAKSHINAMOORTHY

JUDGEMENT

(1.) THE petitioner herein is the accused in C.C.No.234 of 2008 on the file of the learned Judicial Magistrate, Tambaram. THE respondent herein is the complainant, who filed a case against the petitioner for an alleged offence under Section 138 of the Negotiable Instruments Act. THE respondent herein also has filed an application under Section 91 of Cr.P.C., before the trial Court seeking a direction from the learned Magistrate to the accused to produce the undertaking letter dated 27.12.2007 given by the accused to the complainant accepting the financial liability and also about issuance of cheques. THE said application was allowed by the learned Magistrate directing the accused to produce the document dated 27.12.2007 and also permitting the complainant to mark the copy of the said document, in case of failure on the part of the accused to produce the said document. Challenging the said order, the accused/petitioner herein had preferred this criminal original petition before this Court.

(2.) LEARNED counsel for the petitioner submits that the accused cannot be compelled to produce any document to be evidenced against him, which is violative of Article 20(3) of the Constitution of India. The learned counsel for the petitioner has also relied on a decision of this Court reported in 1997 (III) CTC 196 (K.Senthamarai and another Vs. State by Inspector of Police) and submitted that Section 91 Cr.P.C., cannot be exercised against the accused. It is further submitted by the learned counsel for the petitioner that the respondent/complainant has not mentioned in his application before the trial Court under whose possession the original document is available. The learned counsel for the petitioner also pointed out that even assuming for a moment, a letter was given by the accused to the complainant accepting the liability, such letter could be only in the possession of complainant.

(3.) AN application has been filed by the complainant under Section 91 Cr.P.C., for production of letter dated 27.12.2007 by the accused. It is observed by the Hon'ble Supreme Court in a decision reported in A.I.R. 1965 Supreme Court 1251 (State of Gujarat Vs. Shyamlal) in paragraph No.33 as follows:-