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2006 DIGILAW 881 (KAR)

G. S. Ramesh v. Maba Corporate Services Ltd. Co.

2006-11-02

A.C.KABBIN

body2006
ORDER A.C. Kabbin, J.—This petition under Section 482 Code of Criminal Procedure is for quashing the order dated 27-9-2006 passed by the learned XVIII Addl. CMM, Bangalore in C.C. No. 10476/03 dismissing the application of the acused-Petitioner filed under Section 91 of Code of Criminal Procedure to summon certain documents. 2. In the complaint for an offence under Section 138 of the Negotiable Instruments Act filed against this Petitioner for non-payment of the amount of cheque of Rs. 25 Laksh, after the statement of the accused, when the defence evidence was to be commenced, this application was filed by the Petitioner under Section 91 of Code of Criminal Procedure in the following terms: The accused above named respectfully begs to submit that this Hon'ble Court may be pleased to summon the Income Tax Returns of the Complainant-Company for the years 2000, 2001, 2002 and 2003 with relevant Board Resolutions for the above years and also the Accounts Extracts for the said years of the Complainant-Company las the PW.1 has deposed and alleged that the Complainant-Company has advanced the loan to the accused in three distinct dates i.e., 4-5-2000, 19-5-2000 and 25-3-2003 to the tune of Rs. 3 Lakhs, Rs. 12 Lakhs and Rs. 20 Laksh respectively in the interest of justice. 3. The learned Addl. CMM after hearing the other side rejected the application. Challenging the said order, this petition is filed. 4. Learned Counsel for the Petitioner submits that in the cross-examination, the Complainant-Respondent has stated that an amount of Rs. 3 Lakhs on 4-5-2000, Rs. 12 Lakhs on 19-5-2000 and Rs. 20 Lakhs on 25-3-2003 were paid on half of the Complainant-Company to him in cash and therefore, it is necessary that the relevant Board Resolutions for the other loans, the Accounts Extracts and the Income Tax Returns to be summoned. He submits that no prejudice will be caused to the accused and therefore, the learned Addl. CMM ought to have allowed the application. 5. Learned Counsel for the Respondent submits that as regards the Board's Resolutions the reply given by P.W.1 shows that there is no such Resolution and that the amounts were paid in cash by the Complainant-Company. The Petitioner is the brother-in-law of the Managing Director. CMM ought to have allowed the application. 5. Learned Counsel for the Respondent submits that as regards the Board's Resolutions the reply given by P.W.1 shows that there is no such Resolution and that the amounts were paid in cash by the Complainant-Company. The Petitioner is the brother-in-law of the Managing Director. He submits that when the Petitioner had filed a memo on 19-2-2005 and evidence of P.W.1 was recorded admitting the liability, he is not precluded from taking such a defence when the case is taken up for defence evidence. 6. As regards the Resolution since P.W.1 has stated that there is no such Resolution passed, the Income Tax Returns of the Complainant-Company can be summoned only if they are absolutely necessary. It is not in the evidence that the Income Tax Returns either reflect or do not reflect the transactions. The question is whether the cheque issued is in respect of the legally recoverable debt from the Petitioner. 7. The memo dated 19-2-2005 filed by the accused before the learned trial Judge which is relied upon by the Petitioner reads as under: The accused humbly submits that towards repayment of the debt in the above complaint today he is tendering sum of Rs. 50,000/- (Fifty thousand) only through DD No. 346424 drawn on Bank of Baroda and prays for this Hon'ble Court may kindly grant some more time to clear the cheque amount in the above case and to settle the matter in the interest of justice and equity. 8. The contention of the Petitioner is that he was compelled to file a memo when the matter was taken up for evidence before the trial Court. I am of the opinion that the learned Addl. CMM was right in rejecting the application. 9. The petition is therefore dismissed as devoid of merit.