2019 (9) TMI 786 - HC - Indian Laws

Dishonor of Cheque - section 138 of NI Act - maintainability of application filed under Section 91 Cr.P.C - HELD THAT - The petitioner/accused is facing trial for an offence under Section 138 N.I Act and he has preferred an application under Section 91 Cr.P.C. with the prayer that the complainant has stated that he has given the aforesaid amount to the petitioner/accused thus it is necessary to bring this fact into knowledge of the Court that from which bank the aforesaid money was withdrawn by complainant and it is also mandatory to call the necessary documents regarding bank statements and income tax return of the relevant years to find out the income of the complainant - at the initial stage of trial when charges are to be stated application filed under Section 91 Cr.P.C can not be entertained. The Court is empowered to call any documents which are 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 Court under Section 91 of Cr.P.C. is discretionary in nature and same can be exercised judiciously and in proper manner. It also shows that the power to issue a summons for the production of a document or a thing is to be exercised whenever the Court considers that its production is necessary or desirable for the purposes of investigation inquiry trial or other proceeding. Power is available to the Court at every stage of proceedings contemplated under the Code. It has to be noticed that this power is available not only to the Court but also to any officer-in-charge of a police station and the only condition for the exercise of the power is that the production of the document or the thing should be necessary or desirable for purposes of the proceedings. 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. It is also manifest from the above cited judgment that the power of Court under Section 91 Cr.P.C. is unlimited but at the same time there is limitation as to which stage or point of time Court may exercise it power under Section 91 Cr.P.C. The Court has to see the compulsion of necessity and desirability of the document to the context of the purpose which is called for. A police officer may file an application under Section 91 Cr.P.C. at any of the stages but the accused can seek such order only at the stage of defence he has no right conferred to produce document in his possession to prove his defence at the stage of framing of charge. The present case is originated by filing a private complaint under Section 200 Cr.P.C. and its procedure is quite different with the procedure of warrant trial but bare perusal of impugned order it seems that the in the case particulars of offence are to be stated to accused under section 251 Cr.P.C thus the case is said to be in initial stage of trial. This Court does not found any apparent error to interfere in the discretion of the learned JMFC. The pronouncement referred by the petitioner s counsel is having different set of facts and do not applicable in the present case - petition dismissed.

Summary

Issues Involved:
1. Application under Section 91 Cr.P.C. for production of documents.
2. Relevance and necessity of documents requested by the petitioner.
3. Stage of trial and the applicability of Section 91 Cr.P.C.
4. Judicial discretion in summoning documents.
5. Impact of non-filing of income tax returns by the complainant.

Issue-wise Analysis:

1. Application under Section 91 Cr.P.C. for production of documents:
The petitioner filed an application under Section 91 Cr.P.C. seeking the production of documents such as bank statements, balance sheets, income tax returns, agreement, and consent letters from the complainant. The petitioner argued that these documents were necessary to reveal the truth of the case, particularly to show the source of the Rs. 60,00,000/- alleged to have been given to the petitioner by the complainant.

2. Relevance and necessity of documents requested by the petitioner:
The petitioner contended that during the demonetization period, it was difficult to withdraw such a large amount, and thus, details of the bank account and other financial documents were crucial to prove that the complainant's case was false. The petitioner also argued that the cheque was given as a guarantee and was misused by the complainant. The court noted that the necessity and desirability of the documents must be examined considering the stage of the trial and the party requesting them.

3. Stage of trial and the applicability of Section 91 Cr.P.C.:
The court emphasized that the application under Section 91 Cr.P.C. was filed at the initial stage of the trial when charges were yet to be stated. Referring to the Supreme Court's judgment in Debendra Nath Padhi's case, the court noted that Section 91 does not confer a right on the accused to seek production of documents to prove his defense at the stage of framing the charge. The court reiterated that the power under Section 91 is discretionary and must be exercised judiciously.

4. Judicial discretion in summoning documents:
The court highlighted that the power to issue summons for the production of documents under Section 91 Cr.P.C. is discretionary and should be exercised judiciously. The court referred to the Supreme Court's observations in Om Prakash Sharma's case, stating that the powers under Section 91 are enabling in nature and should be exercised considering the necessity and desirability of the documents at the relevant stage of the proceedings.

5. Impact of non-filing of income tax returns by the complainant:
The court noted that the non-filing of income tax returns by the complainant would not automatically dislodge the source of income. It emphasized that non-payment of income tax is a matter between the revenue and the assessee, and no adverse inference can be drawn solely based on the absence of income tax returns. The court found that other documents requested by the petitioner were undesirable at this stage and that the petitioner had not specified the particulars of the desired documents adequately.

Conclusion:
The court concluded that there was no apparent error in the discretion exercised by the learned CJM in rejecting the application under Section 91 Cr.P.C. The petition was dismissed, but the petitioner was granted liberty to revive his prayer after completing the cross-examination of the complainant if the facts and circumstances permitted.