2019 (6) TMI 874 - HC - Indian Laws

Maintainability of petition - rejection of application under Section 91 of Cr.P.C. filed by the petitioner - Dishonor of Cheque - section 138 of NI Act - repayment of money - production of documents - HELD THAT - The Court is empowered to call any documents which is necessary to fair proceeding of the case. The Court can issue summons to the person whom possession the desirable documents are kept. The powers which has given to under Section 91 of Cr.P.C. is discretionary in nature and same can be exercised judiciously and in proper manner. The superior Court can intervene only in case where the discretion exercised by the lower Court neither judiciously nor judicially and there is gross failure to exercise the discretion of the Court. The Superior Court should not interfere in the discretion of the learned lower Court in a routine fashion. In the present case, there is a dispute regarding repayment of money. The complainant has given amount to the petitioner accused and in lieu of the same he has given some cheques to the complainant which were dishonoured by the bank. The accused took the defence that earlier some money transaction was made between them and in respect of the same he had given the aforesaid cheques, but even after paying the same, complainant did not return the cheques, given by him. He has misused the same by filing this present case. It is undisputed, the order of rejection passed under Section 91 of the Cr.P.C. is an interlocutory in nature and same can not be challenged by filing a revision petition. Therefore, the learned Revisional court did not make any error in passing the said order. Petition dismissed.

Summary

Issues:
1. Rejection of application under Section 91 of Cr.P.C.
2. Dismissal of revision petition on the ground of maintainability.

Issue 1: Rejection of application under Section 91 of Cr.P.C.:
The petitioner filed a miscellaneous criminal case under Section 482 of Cr.P.C. challenging the rejection of an application under Section 91 of Cr.P.C. by the learned JMFC and the Revisional Court. The petitioner contended that the complainant had filed a private complaint under Section 200 of Cr.P.C. against the petitioner for an offence under Section 138 of N.I. Act. The petitioner claimed there was a money transaction between them, involving three cheques issued by the petitioner, which were dishonored by the bank. The petitioner sought to produce bank statements, income tax returns of the complainant, and a copy of a registered notice sent by the complainant. The trial court rejected the application, stating that the complainant, being an agriculturist, had no documents to produce. The Revisional Court upheld the rejection, citing the interlocutory nature of the order under Section 91 of Cr.P.C.

Issue 2: Dismissal of revision petition on the ground of maintainability:
The petitioner argued that the Revisional Court erred in appreciating the importance of the application under Section 91 of Cr.P.C. in determining the truth of the case. The petitioner sought to establish the source of the amount involved in the transaction and challenged the complainant's allegations. The petitioner relied on judgments to support the necessity of producing relevant documents. On the other hand, the respondent contended that the complainant had not been cross-examined yet, and thus, could not be compelled to produce the requested documents. The court examined the provisions of Section 91 of Cr.P.C. and emphasized the discretionary nature of calling for necessary documents. The court referred to a Supreme Court judgment highlighting the importance of exercising discretion judiciously. Ultimately, the court dismissed the petition but allowed the petitioner to renew the request after the completion of the complainant's cross-examination.

This judgment delves into the intricacies of the application under Section 91 of Cr.P.C., emphasizing the discretionary power of the court to call for essential documents. The court upheld the rejection of the application, considering the complainant's inability to produce the requested documents at that stage. The dismissal of the revision petition was based on the interlocutory nature of the order under Section 91 of Cr.P.C. The judgment underscores the need for judicious exercise of discretion and highlights the importance of establishing a prima facie case before proceeding further.