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2011 DIGILAW 187 (RAJ)

Laxmi Mal Lodha v. Suresh Lodha

2011-01-27

VINEET KOTHARI

body2011
JUDGMENT 1. - This revision petition is directed against the order dated 13.12.2010 whereby the learned Court below rejected the application of the accused petitioners under Section 311 Criminal Procedure Code for summoning of the two witnesses, namely, Sh. S.N. Tiwari, Advocate and the Oath Commissioner, which were required to be summoned in relation to document Ex.D/8 filed by the accused petitioners which was taken on record by the learned trial Court in the present proceedings under Section 138 of the Negotiable Instruments Act. 2. The learned counsel for the accused petitioners Mr. Suresh Kumbhat drew the attention of the Court towards Section 139 of the Negotiable Instruments Act, 1881 which provides that it shall be presumed, unless contrary is proved that holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. The learned counsel 27.1.2011 for the accused petitioner submitted that since the said burden was on the accused petitioners to rebut that presumption of holding the said cheque in due course and further since signature on the documents Ex.D/8 which was a document filed in the Civil Court by the complainant himself, therefore, summoning of the witnesses was necessary in relation to prove the document Ex.D/8. 3. On the other hand, the learned counsel for the respondent - complainant Mr. Sandeep Mehta, Sr. Advocate urged that first the said application was filed by the accused merely to delay the proceedings and one after the other, such applications were filed to delay the proceedings under Section 138 of the Negotiable Instruments Act. He also submitted that the complainant Suresh Lodha was already examined on earlier occasion and having failed in eliciting requisite information from him, the accused persons have again filed this application, which has been rightly rejected. Drawing the attention of the Court towards section 126 of the Evidence Act, the learned counsel for the respondent urged that in any case, the Advocate Mr. S.N. Tiwari could not be summoned in the Court for this purpose as he enjoys such immunity as per provisions of section 126 of the Evidence Act. 4. Drawing the attention of the Court towards section 126 of the Evidence Act, the learned counsel for the respondent urged that in any case, the Advocate Mr. S.N. Tiwari could not be summoned in the Court for this purpose as he enjoys such immunity as per provisions of section 126 of the Evidence Act. 4. Having heard the learned counsels, this Court is of the opinion that since the burden of rebuttal of presumption as given in 27.1.2011 Section 138 of the Negotiable Instruments Act is upon the accused petitioner by virtue of Section 139 of the Negotiable Instruments Act, 1881, which was inserted by Act No.66 of 1988 w.e.f. 1.4.1989 to prove that holder of the cheque did not hold such cheque in due course, an opportunity in this regard to the accused - petitioners deserves to be given. Since the documents Ex.D/8 has already been taken on record by the learned Court below and it is stated to be a document filed by the complainant in the Civil Court in relation to some civil suit, therefore, in the interest of justice, the learned trial Court should have summoned the said witness except Mr. S.N. Tiwari, Advocate in relation to document Ex.D/8. 5. Consequently, this revision petition is allowed. The order dated 13.12.2010 of the learned trial Court is quashed and set aside and the learned trial court is directed to summon the concerned Oath Commissioner and not the Advocate Mr. S.N. Tiwari in relation to document Ex.D/8 as claimed by the accused petitioners. The concerned witness may be summoned within a period of one month from today.Petition allowed. *******