2019 (2) TMI 67 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - Section 138 of the Negotiable Instrument Act - Held that - It is evident from the record that the petitioner/accused has filed an application under Section 91 of the Cr.P.C. to call the agreement made between the parties, cheque book, income tax returns and details of saving accounts of the respondent/complainant. Respondent/complainant has filed a reply of this application before the trial Court and submits that he is retired person and does not pay the income tax. Therefore, he is unable to produce the documents relating to income tax return. So far as, agreement is concerned, the learned Revisional Court has observed that the complainant did not mentioned about this fact. This finding of the learned Revisional Court is found correct. Apart from that, it is also evident that the evidence stage of complainant/respondent is going on and complainant was not cross-examined yet, therefore, petitioner/accused can put up his defence by asking question to the complainant and thereafter the respondent/complainant will clarify his position then only the petitioner/accused will be entitled to put up such application before the learned trial Court. It does not appear that it is a case of failure of justice or a case in which interference can be made by invoking the extra ordinary jurisdiction of the Court - petition dismissed.

Summary

Issues involved:
Challenge to order passed by Additional Sessions Judge under Section 482 of the Cr.P.C. regarding dishonored cheque in a case under Section 138 of the Negotiable Instrument Act.

Analysis:
1. The petitioner challenged the order passed by the Additional Sessions Judge affirming the order of the Judicial Magistrate in a case involving a dishonored cheque. The respondent alleged that the petitioner borrowed a sum of money and issued a check that bounced due to insufficient funds. Subsequently, the respondent filed a complaint under Section 138 of the NI Act, leading to the current case.

2. The petitioner sought the income tax return of the respondent for cross-examination under Section 91 of the Cr.P.C. The lower court dismissed this application, prompting the petitioner to file a revision, which was also dismissed. The petitioner argued that the income tax returns were crucial to establish his defense and cast doubt on the alleged transaction.

3. The petitioner contended that the trial court erred in rejecting the application, emphasizing the importance of the income tax returns to challenge the complainant's financial capacity. The petitioner raised doubts about the transaction and the complainant's credibility, citing the need for proper documents to ensure a fair defense.

4. The respondent argued that the petitioner's application was a delay tactic, as the complainant's evidence was yet to be completed. The respondent, being a retired individual not liable to pay income tax, claimed inability to produce the requested documents. The respondent opposed the petitioner's plea for the income tax return, seeking dismissal of the petition.

5. The court noted that the dishonored check indicated insufficient funds and the petitioner's application under Section 91 of the Cr.P.C. aimed to obtain various documents, including income tax returns. The respondent's inability to provide income tax returns due to retirement status was acknowledged. The court highlighted that the complainant's evidence was ongoing, and the petitioner could raise questions during cross-examination.

6. The court concluded that the petitioner's plea did not demonstrate a failure of justice warranting extraordinary court intervention. The dismissal of the petition was based on the ongoing evidence stage, the complainant's retirement status, and the lack of necessity for immediate interference.

7. In the final decision, the court found no merit in the petitioner's petition and dismissed it accordingly, upholding the lower court's orders and emphasizing the importance of allowing the trial process to proceed without unwarranted delays or disruptions.