2023 (1) TMI 1132 - HC - Indian Laws

Dishonor of Cheque - income tax officer can be called as a witness on an application filed by the present petitioners/original accused in a proceeding under Section 138 of the Negotiable Instruments Act or not? - HELD THAT - This Court finds that the accused had right to establish his case and for that purpose he can certainly make a prayer for summoning a witness. It is specific case of the accused that he suspects that the copies of the balance-sheet and the ITR filed by the complainant on record are not genuine. It is for that reason, he has filed an application praying for summons to the proper authority so that the copies of the documents, which are actually submitted to the authorities would be produced on record. This Court finds that the application ought to have been allowed by the learned trial Judge and while dismissing such application, erred in holding that under Section 91 of the Cr.P.C., the matter was not for deciding authenticity of any document. It was necessary to consider that when the defense wants to examine the officer and wants to rely upon the documents which are submitted by the complainant to the authorities, it was necessary to allow the same considering that the accused has right to prove his case. This Court finds that a case is made out to call for interference by entertaining a Writ Petition. The Writ Petition is therefore, allowed.

Summary

Issues:
Whether the income tax officer can be called as a witness in a proceeding under Section 138 of the Negotiable Instruments Act.

Analysis:
Issue 1: Calling Income Tax Officer as a Witness
The petitioners sought to call the Income Tax Officer as a witness to authenticate documents submitted by the complainant in a case under Section 138 of the N.I. Act. Initially, the application was rejected by the learned JMFC, citing that the accused could present evidence later. The petitioners challenged this decision through a writ petition. After the accused's statement was recorded, a subsequent application was filed to summon the Income Tax Authority, which was again rejected by the trial judge. The petitioners argued that the authenticity of documents was crucial, and without the Income Tax Authority's testimony, a fair conclusion couldn't be reached. They relied on previous judgments to support their stance.

Judicial Precedents:
In the case of Kamal Ahmed Mohammed Vakil Ansari & Ors., the court emphasized the accused's right to summon documents for defense. The court clarified that the accused's need for documents is not contingent on their use by the prosecution. The judgment highlighted the importance of allowing the defense to call for necessary documents. In the case of T.R. Ajayan, the High Court allowed applications to produce documents despite the finality of orders under the Income Tax Act. Similarly, in Dagi Ram Pindi Lall, the Supreme Court affirmed the court's power to summon Income Tax Authorities for documents, emphasizing the independence of this power from statutory limitations.

Conclusion:
The court acknowledged the accused's right to establish their defense by summoning witnesses and documents. It noted the accused's suspicion regarding the authenticity of documents submitted by the complainant and the necessity to verify them through the Income Tax Authority. The court found the trial judge's reasoning flawed and allowed the writ petition, setting aside the previous order. The trial court was directed to proceed with the trial by summoning the Income Tax Authorities as requested in the application. Additionally, the trial court was urged to expedite the proceedings, aiming for completion within six months.

Final Decision:
The Writ Petition was allowed, the impugned order was set aside, and the trial court was directed to summon the Income Tax Authorities. The trial court was requested to expedite the trial, aiming for completion within six months.