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TMI Blog2023 (1) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner no.2 filed an application in the Court of the learned JMFC, Aurangabad, below Exhibit 80-D under Section 91 of the Code of Criminal Procedure (Cr.P.C. for short) praying for issuance of summons to Officer from Income Tax Department, Aurangabad to bring on record the documents in respect of Income Tax Return, balance sheet etc. of the complainant from 2016 to 2021. He suspects the genuineness and authenticity of those documents and particularly about the balance-sheet and other supporting documents. In view of that, it was prayed to issue witness summons to the Income Tax Authority alongwith record. The learned JMFC by order 08.12.2021 rejected the application for the reason that the complaint was for the recording of statement of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners mainly on the ground that only the Income Tax Authority can be confronted on the documents produced on record by the complainant in support of his case. A specific ground is taken that the documents produced by the complainant on record are fabricated. Genuineness of the documents goes to the root of the matter as the entire case of the complainant and the accused is based upon these documents. It is the main document going to decide ultimate fate of the complaint. He submits that unless some person from the Income Tax Department is examined, it would not be possible for the Court to arrive at any conclusion in respect of the documents produced on record. The learned Advocate further submits that the learned trial Court has fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 207 of the Code. When the appellants wanted the documents to be produced on the ground that the same would prove their innocence, or facilitate their defence, that those documents were not relied upon by the prosecution was an irrelevant consideration. The question which the Learned Judge should have addressed himself to was whether the accused would be disentitled from calling for such documents on the ground that these documents are not relied upon by the prosecution. In paragraph no.33 of the said judgment, this Court further observed that Section 91 of the Code empowers a Court to issue summons to a person to produce before the Court, a document or thing believed to be in possession of such person for the purpose of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 138(1)(b) of the Act is applicable only in cases where applications are made to the Commissioner by a party or any other person for receiving documents or information. It is held that the power of the Court to summon the production of record is not affected. Thus it is clear that the Income Tax Authorities can be summoned to produce documents on record such as ITR, balance-sheet etc., if felt necessary by the Court. 10. The learned Advocate for respondent no.2 opposed the petition vehemently saying that the learned trial Judge has rightly rejected the application. The complaint is under Section 138 of the N.I. Act and therefore he submits that the petitioner has to prove his defense only by preponderance of probability. He is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. In view of the aforesaid discussion, this Court finds that a case is made out to call for interference by entertaining a Writ Petition. The Writ Petition is therefore, allowed. The impugned order dated 02.08.2022 passed by the learned JM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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