2024 (3) TMI 441 - HC - Indian Laws

Dishonour of Cheque - application seeking summoning of the records/documents/books of accounts mentioned in the said application for purposes of cross-examination of the Authorised Representative of the respondent/complainant company dismissed - HELD THAT - The present petition was first listed before this Court on 26.04.2022. This Court directed the petitioner to file a three page summary clearly identifying the documents of which the petitioner seeks summoning before the learned Trial Court, and referring to the relevance of the said documents within the context of the proceedings under Section 138 of the NI Act instituted by the respondent against the petitioner. The petitioner is seeking the production of documents only with the intent of conducting a fishing and roving inquiry and to, in fact, embarrass the trial. Such attempt of the petitioner cannot be allowed to succeed. In any case, if the learned Trial Court is later of the opinion that these documents were relevant to be produced by the respondent for proving the case against the petitioner, the Court will draw an adverse inference of their non-production against the respondent. However, at this stage, this Court is of the opinion that the documents, production of which are sought for by the petitioner, are neither relevant nor necessary for a proper and fair adjudication of the Complaint filed by the respondent. In KAILASH VERMA VERSUS PUNJAB STATE CIVIL SUPPLIES CORPN. 2005 (1) TMI 406 - SUPREME COURT , the Supreme Court has held the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court. There are no merit in the present petition. The same is, accordingly, dismissed.

Summary

Issues Involved:
1. Challenge to the dismissal of the revision petition by the ASJ.
2. Relevance and necessity of summoning documents for cross-examination under Section 138 of the NI Act.
3. Allegations of forgery and misuse of documents by the respondent.

Summary:

Issue 1: Challenge to the dismissal of the revision petition by the ASJ
The petitioner filed a petition under Section 482 of the Cr.P.C., challenging the order dated 10.11.2021 by the ASJ, which dismissed the revision petition against the Trial Court's order dated 18.09.2019. The Trial Court had dismissed the petitioner's application seeking summoning of documents for cross-examination in a complaint case under Section 138 of the NI Act.

Issue 2: Relevance and necessity of summoning documents for cross-examination under Section 138 of the NI Act
The petitioner argued that the documents were crucial for proper adjudication and cross-examination. He cited a previous order dated 23.03.2018, which allowed him to apply for summoning documents not in his possession. The Court reiterated that under Section 91 of the Cr.P.C., documents could be summoned if deemed "necessary or desirable" for the trial. The Supreme Court in "State of Orissa v. Debendra Nath Padhi" emphasized that such necessity must be evaluated considering the stage of the trial and the party requesting it. The Trial Court and ASJ found the documents irrelevant for the case under Section 138 NI Act and dismissed the application to avoid unnecessary delays.

Issue 3: Allegations of forgery and misuse of documents by the respondent
The petitioner alleged forgery in signatures and misuse of documents by the respondent, including creating a fake email ID and sending bogus SMSes. He sought summoning of various records from service providers and arbitral records. The Court noted that these requests appeared to be a fishing and roving inquiry, intended to delay the trial. It held that if the documents were later found relevant, the Trial Court could draw adverse inferences from their non-production by the respondent.

Conclusion:
The High Court found no merit in the petition, emphasizing that the documents sought were neither relevant nor necessary for a fair adjudication of the complaint under Section 138 of the NI Act. The petition and the pending application were dismissed, with no orders as to costs.