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Madhya Pradesh High Court · body

2008 DIGILAW 186 (MP)

Map Auto Ltd. v. Anil Kumar Jain

2008-02-04

BRIJ MOHAN GUPTA

body2008
ORDER Brij Mohan Gupta, J. 1. Although these five revisions have been filed for impugning five different orders passed in five different cases, yet as agreed to by all the parties in all these five cases, parties are same and the point in dispute is also same, hence, all these revisions have been heard together and are being disposed of by this common order. 2. On perusal of the record and as not disputed by the parties, it appears that there was a business transaction between the petitioner M/s. Map Auto Ltd. (petitioner in short) and M/s. Deepshikha Auto Pvt. Ltd., Mohini Market, Exhibition Road, Patna (Bihar) (Company in short). During this business transaction, some goods were purchased by the company from the petitioner and in lieu of the price of the same, five cheques worth rupees five lacs each were issued in favour of the petitioner signed by the respondent No. 1. When the five cheques were presented for encashment, they were dishonoured. Hence, five criminal complaints have been filed by the petitioner against the company as respondent No. 1 alongwith nine others in the capacity of directors and other related persons with the company in the year 2000. When the case was fixed for final argument, two applications dated 12th February, 2007; one under Section 91 and another under Section 311 of Cr.PC have been filed in the Trial Court. In the first application, it is mentioned that as per the averment in complaint since 1994 business transaction is in existence between both the parties and the company has purchased goods from the petitioner, but no such document has been filed on behalf of the petitioner by which it can appear that some goods were purchased by the company. The documents related to the transaction are in possession of the petitioner, hence, the petitioner be directed to file all the documents including MOUs, bills, account papers, bilties or other documents related to business transaction etc. In second application, it is mentioned that on behalf of the petitioner witnesses Sanjeev Dubey and Narendra Mohan Thapar have been examined. During cross-examination, they have mentioned that as they have not brought the account-books alongwith them, hence, they cannot give information contained in the documents. In second application, it is mentioned that on behalf of the petitioner witnesses Sanjeev Dubey and Narendra Mohan Thapar have been examined. During cross-examination, they have mentioned that as they have not brought the account-books alongwith them, hence, they cannot give information contained in the documents. In view of this, as effective cross-examination could not be conducted with these two witnesses, hence, after calling the documents, these two witnesses be recalled for further cross-examination. 3. Vide order dated 12th February, 2007, the learned Trial Court rejected both the applications. Feeling aggrieved, respondents filed criminal revisions which have been allowed vide impugned orders dated 3rd April, 2007 passed by 12th Additional Sessions Judge (Fast Track Court), Gwalior. Hence, these revisions by the petitioner. 4. Shri Sharma, the learned Counsel for the petitioner, has drawn attention at Paras 12 and 15 of the impugned order and submitted that at the time of final arguments, after giving three opportunities for leading defence evidence, the applications have been filed and it is observed by the learned Judge in Para 15 that the learned Magistrate has rightly rejected the applications. Once this observation is given, then thereafter taking a different view is not justified. While placing reliance on an order of this Court passed by different Bench in Mahesh Joshi v. Sanat Kumar Jain 2007(1) M.P.H.T. 33 , he has submitted that the trial is pending since last seven years and despite opportunities given, no defence evidence was produced by the respondents and filing of these applications is nothing but delaying the trial which ought to be rejected. He has further submitted that in the order of the learned Magistrate there was no impropriety or illegality, hence, Lower Revisional Court is not right in setting aside the same. 5. Shri Pateria, the learned Advocate for the respondent Nos. 1,3 and 5 has submitted that the learned Magistrate has rejected the applications mainly on the ground of delay on which the applications were not required to be rejected. It has not been considered by the learned Magistrate that whether in the interest of justice the documents are required or not and thereafter whether for the just decision of the case recalling of the witnesses is obligatory on the Court or not. On the contrary, the learned Judge has specifically observed that the documents are necessary to meet the ends of justice. On the contrary, the learned Judge has specifically observed that the documents are necessary to meet the ends of justice. While observing this, whole of the record was available with the learned Judge which is not available before this Court. In view of this, as the impugned order does not appear erroneous, no interference is required. 6. Shri Agrawal, learned Advocate for the respondent Nos. 2 and 4, while drawing attention at a list of dates, Annexure P-6 filed on behalf of the petitioner showing the status of the case, has submitted that in the year 2000, complaints were filed and by the first time the affidavit/evidence on behalf of the petitioner has been submitted in the Court in the year 2005. In view of this, placing blame of delaying the case on the respondents is not justified and on the same ground on the basis of delay, the applications ought not to be rejected. As provided by provisions of Section 91 of Cr.PC, wherever a Court considers that production of any document or other thing is necessary or desirable for the purposes of trial etc., the Court may direct the same to be produced before the Court. For consideration of the Court, apart from necessity, desirability is also one of the two factors. The documents required are not only desirable but also necessary for the purpose of the trials being faced by the respondents. In Paragraph 22 of his statement, witness Sanjeev Dubey, the main witness of the petitioner, has admitted that the cheques were issued for the purpose of security. The availability of the documents required with the possession of the petitioner, has not been countered rather admitted by the aforementioned witness in Para 22 of his statement. While placing reliance on the judgments delivered by the Apex Court in Krishna Janardhan Bhat v. Duttatraya G. Hegde 2008CriLJ1172 and P. Chhaganlal Daga v. M. Sanjay Shaw (2003)11SCC486 , he has submitted that the impugned order is not erroneous and it ought to be sustained. 7. Admittedly, reply of the notice, issued by the petitioner, was given by the company. On perusal of the copy of the reply dated 20th May, 2000, it appears that there is specific denial on the part of the company of the respondents with the specific averments that the cheques were issued for the purpose of security and guarantee. 7. Admittedly, reply of the notice, issued by the petitioner, was given by the company. On perusal of the copy of the reply dated 20th May, 2000, it appears that there is specific denial on the part of the company of the respondents with the specific averments that the cheques were issued for the purpose of security and guarantee. No goods as alleged in the complaints were sent to and received by the company of the respondents. For ready reference, a relevant part of the notice from Paras 4 to 13 is reproduced hereinbelow: 4. That the provisions of Section 138 or 141 of N.I. Act are not applicable to the transactions made between my client and your client because cheques issued by my client were against no amount due or liability accruing to your client against my clients rather the same were issued as securities for proper performance of the transactions and to be returned back according to the terms of transactions as it is apparent from the relevant fact stated hereinafter. 5. That your client M/s. Map Auto Ltd. did not supply material, i.e., leaf springs to my clients and hence there was no dues or outstanding of your client against my client and therefore question of discharging any liability in part or in full or issuing any cheques in respect thereto did not arise at all. 6. That my client as being the distributors of your client for the State of Bihar was doing the job of collecting orders as well as payments on behalf of your client and deposited the same to your client through their local office or through their local representatives of Patna. 7. That your client arbitrarily stopped the supply to the dealers under my client and under the conspiracy induced my client to issue five cheques of Rs. 5.0 lac each to resume the supply to the dealers. 8. That my client on the clear terms of (A) collection of the payment by them (my client) only from the dealers and (b) resumption of supplies to them delivered those cheques as guarantee against the dues with the dealers in good faith which is very clear from the letter dated 4-11-99 of my client. 8. That my client on the clear terms of (A) collection of the payment by them (my client) only from the dealers and (b) resumption of supplies to them delivered those cheques as guarantee against the dues with the dealers in good faith which is very clear from the letter dated 4-11-99 of my client. It was further made clear in that letter that the cheques were to be returned to my client without encashing the same time to time against the same value of payment made through drafts issued by the dealers and collected by my client. 9. That my client when came to know that your client was directly collecting the payment from the market and failed to supply the materials to the dealers which was in violation of the terms agreed at the time of issue of the cheques by my client, warned them not to do so by their various letters. 10. That in spite of so many requests to abide by the terms of delivery of those cheques, when my client found that your client was knowingly violating the terms with ulterior motive alongwith being busy in disturbing the collection guaranteed by my client through the cheques by spreading rumours & defaming my client, my client asked your client to return those cheques and informed your client that the payment of those cheques might be stopped by them. 11. That ultimately when it became clear that the intention of your client was bad & dishonest, which...breach of trust by your client, my client had no option left except to instruct its bankers on 12-1 -2000 to stop the payment with an intimation to your client so that your client might not misuse those cheques. 12. That the presentation of those five cheques on 3-4-2000 by your client itself is breach of trust and breach of contract and liable to punishment under Sections 120B, 409, 418 and 420, IPC. 13. 12. That the presentation of those five cheques on 3-4-2000 by your client itself is breach of trust and breach of contract and liable to punishment under Sections 120B, 409, 418 and 420, IPC. 13. That your client had the full knowledge much earlier to the deposit of those cheques on 3-4-00 for encashment in their bank that the payment of those cheques had been stopped by my client on 12-1-2000 itself with an intimation to your client and my client had requested your client to return those cheques and as such the deposit of the cheques was quite illegally done with ulterior motive of falsely creating a case under Sections 138 and 141 of N.I. Act, 1881 and your notice is further step towards accomplishment of the said dishonest motive. (Emphasis supplied) 8. On perusal of the reply of the company of the respondents alongwith Para 22 of the statement of Sanjeev Dubey that the cheques were given for the purpose of security, the onus lies on the part of the company of the respondents with regard to the presumption under Section 139 of the Act, appears completely discharged. Now, it is the duty of the petitioner to prove its own case. For this purpose, in the light of such denial in the reply, merely filing of the cheques in the cases is not sufficient. The relevant documents on which the alleged liability is based are required to be produced and proved by the petitioner, as observed by the Apex Court in aforementioned judgment of Krishna Janardhan (supra), cited on behalf of the respondents. In this light, the observation of the Apex Court in the case of M.S. Narayana Menon alias Mani v. State of Kerala and Anr. 2006CriLJ4607 , can also be perused. As provided by Section 91 of Cr.PC, such documents which are available in the possession of the petitioner and the petitioner thinks sufficient to prove its own case, appear necessary and desirable to be produced in the Court, as directed by the Court below. Once the documents are produced in the Court, they will be required to be proved on behalf of the petitioner to sustain its own case and in that case, recalling of the aforementioned two witnesses, i.e., Sanjeev Dubey and Narendra Mohan Thapar for the purpose of further cross-examination will be required. Once the documents are produced in the Court, they will be required to be proved on behalf of the petitioner to sustain its own case and in that case, recalling of the aforementioned two witnesses, i.e., Sanjeev Dubey and Narendra Mohan Thapar for the purpose of further cross-examination will be required. Even otherwise on production of the documents, the further cross-examination appears necessary for just decision of the case. On that basis, the impugned order as a whole does not appear erroneous. 9. The facts of the case of Mahesh Joshi (supra), as cited on behalf of the petitioner are different. In this case, in the cross-examination the complainant had mentioned that upon withdrawal of some amount from his GPF account, the same was available with him. On asking, he had further mentioned about lodging of a report with the police that the amount which was withdrawn by him from his GPF account was stolen from his house. At the stage of defence, two applications of the similar nature were filed on behalf of the accused for calling the FIR lodged by the complainant regarding theft of his GPF amount as well as record of GPF account and for recalling the complainant for further cross-examination on the basis of that documents. In this case, it has been observed that merely for causing delay the applications were filed. In that case, presumption under Section 139 of the Act was not discharged on behalf of the accused as in the present case. Here in the present case, since very beginning the company of the respondents is having a stand that the alleged materials were not supplied to the company for the purpose the cheques have been alleged to be issued. It is specifically mentioned in the reply of the notice that the cheques were given only for the purpose of security or guarantee and the amount against the materials was directly collected by the petitioner from the dealers. Having different facts, the ratio of the order in the case of Mahesh Joshi (supra), cannot help the contentions of the petitioner here in this case. 10. Having different facts, the ratio of the order in the case of Mahesh Joshi (supra), cannot help the contentions of the petitioner here in this case. 10. On perusal of Paragraphs 14 and 15 of the impugned orders passed by the learned Judge, it appears that while commenting on the orders passed by the learned Magistrate rejecting the applications, it has been observed that on the basis of the order of the High Court in the case of Mahesh Joshi (supra), if the applications have been filed for only delaying the proceedings, then the applications were to be rejected, in view of the observation of the High Court in aforementioned case. But in these paragraphs, the learned Judge has not observed that in present cases also the applications have been filed merely for the purpose of delaying the proceedings. On perusal of the order as a whole, no inconsistent observation appears in Paragraphs 14 and 15 of the order, as contended on behalf of the petitioner. As observed hereinabove, the contention of Shri Sharma that in passing the orders by the learned Magistrate, there was no impropriety or illegality, cannot be sustained. 11. In view of all, as discussed hereinabove, the impugned order does not appear erroneous. It is true that in the application under Section 91 of Cr.PC, specific details of the documents have not been given. In view of this, it is directed that as observed hereinabove the petitioner has to prove the liability with regard to the alleged cheques. For proving the same, whatever the documents are required to be proved, the same are to be produced and proved by the petitioner in the Court. In case the documents are produced and proved by the petitioner, if required by the company of the respondents, on their request, the aforementioned two witnesses will be recalled for further cross-examination. Accordingly, all the five revisions are disposed of.