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TMI Blog2020 (6) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... t contemplate a discharge of the accused. It is quite vivid that in summons-cases once offence under Section 138 of the NI Act is registered under the provisions of the NI Act it has to be tried as a summon case and in summon case, there is no provision for recall or revocation of summons already issued to the accused. The accused has to face the trial and he has to be either acquitted or convicted by the said Court and remedy of the accused, if any, to question the order issuing summons to him, is to file a petition under Section 482 of the Code. As such, the order passed by the learned trial Court duly affirmed by the revisional Court holding that in summon-trial of offence under Section 138 of the NI Act the accused cannot be discharged, is an order which does not need interdiction by this Court in exercise of its inherent jurisdiction. Accordingly, both the Courts below are absolutely justified in rejecting the applications filed by the petitioners claiming discharge. 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, inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint be dismissed. The petitioners further filed an objection based on Section 118(a) of the NI Act read with Section 165 of the Evidence Act stating inter alia that the complainants have not disclosed their complete identity with regard to the name of the Director etc., and therefore the complainants be directed to produce documents regarding Khandwa Oils and other details with regard to the accounts. The offence has been registered on 8-1-2015. 4. The aforesaid applications came up for consideration before the learned Magistrate on 3-10-2019 and both the applications came to be rejected holding that the offence under Section 138 of the NI Act registered against the petitioners is triable as summon trial and in summon trial there is no provision for discharge of accused persons and they are free to setup their defence at appropriate stage. However, the learned Magistrate also rejected the other applications for production of documents on the ground that at present, the complaint is at initial stage and the petitioners are free to lead evidence at defence stage against which the petitioners preferred revisions before the revisional Court and the revisional Court concurred with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot guilty or convict him. Section 255(3) of the Code empowers the Court to convict the accused of any offence which from the facts admitted or proved he appears to have committed, if the Magistrate is satisfied that the accused would not be prejudiced thereby. It is significant to note that Chapter XX of the Code which deals with trial of summons-cases, does not contemplate a discharge of the accused. 11. Their Lordships of the Supreme Court in Adalat Prasad (supra), clearly held that if the Magistrate issues process without any basis, the remedy lies in the petition under Section 482 of the Code, there is no power with the Magistrate to review that order and recall the summons issued to the accused. 12. The aforesaid principle of law in Adalat Prasad (supra) was followed by the Supreme Court in the matter of Subramanium Sethuraman v. State of Maharashtra and another (2004) 13 SCC 324 where their Lordships pertinently held as under: - Discharge, Review, Re-Consideration, Recall of order of issue of process under Section 204 of the Cr.P.C. Is not contemplated under the Cr.P.C. in a summons cases. Once the accused has been summoned, the trial court has to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it would be appropriate to take note of the provisions contained in Section 91 of the Code which provides as under: - 91. Summons to produce document or other thing.-( 1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or (b) to apply to a letter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 20.Their Lordships further considered the matter with reference to its earlier decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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