2020 (2) TMI 1698 - HC - Indian Laws

Dishonour of Cheque - prayer of the petitioner to produce on record the income tax returns of the complainant/respondent was declined - HELD THAT - The finding recorded by the trial Court in the impugned order dated 27.10.2016 that the ITRs Mark D3 to D6 are pertaining to relevant period is factually incorrect as these are the ITRs for the years 2012-2013 and 2013-14 whereas as per the case of the complainant the loan was advanced in the year 2008 and the cheque was presented in 2012 and therefore as per the averments made in the complaint and in the statement of the complainant that the petitioner/accused was quarterly paying the amount of interest which on the face of it is not reflected in the ITRs for the years 2008-09 2009-10 2010-11 and 2011-12. Therefore the impugned order dated 27.10.2016 is liable to be set aside. Further the observations made by the trial Court in the impugned order dated 21.11.2016 whereby the petitioner was not granted one more opportunity to deposit the cost of 10, 000/- imposed for summoning the Clerk of State Bank of India are also not justified as it is very much believable that the petitioner could not be able to deposit the said cost on account of declaration of demonetization on 08.11.2016 resulting into cash crunch and paucity of cash even in banks. Petition allowed.

Summary

Issues:
Setting aside trial court orders under Section 311 Cr.P.C. to dismiss application and decline prayer for production of income tax returns of complainant.

Analysis:
The petitioner sought to set aside trial court orders dated 27.10.2016 and 21.11.2016, which dismissed an application under Section 311 Cr.P.C. and declined to produce the income tax returns of the complainant. The complaint was related to dishonoring a cheque of &8377; 11 Lakh. The petitioner argued that the complainant did not produce ITRs for the relevant period of 2008-09 to 2011-12, crucial for the case. The complainant's ITRs for 2012-13 and 2013-14 were on record, but they did not reflect receiving any interest from the petitioner, contradicting his claims of receiving interest payments. The trial court's finding that the ITRs were for the relevant period was deemed factually incorrect, supporting the petitioner's case that he had obtained an interest-free loan and was paying towards the principal amount, not interest.

The petitioner moved an application under Section 311 Cr.P.C. to produce ITRs for the relevant years, but it was wrongly dismissed by the trial court. Additionally, the trial court's decision not to grant an extension for depositing costs for summoning a witness was questioned. The delay in depositing costs was attributed to demonetization, causing cash crunch and difficulty in arranging funds. The High Court found merit in the petition, setting aside the trial court orders and allowing the petitioner to summon ITRs for the relevant years and examine the State Bank of India Clerk, subject to additional costs. The High Court directed the trial court to conclude the proceedings expeditiously, preferably within six months, emphasizing the need for a fair trial and timely resolution of the case.