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Madhya Pradesh High Court · body

2017 DIGILAW 896 (MP)

Shivendra Dhakre v. Narendra Sharma

2017-08-09

ANAND PATHAK

body2017
ORDER 1. Present petition has been preferred by the petitioner under section 482 of the Code of Criminal Procedure, 1973, being crestfallen by the order dated 30.3.2017 passed by the trial Court (JMFC, Gwalior) whereby the application preferred by the petitioner as accused under section 91 of CrPC read with section 165 of Indian Evidence Act has been rejected. 2. Precisely stated facts of the case are that respondent/complainant filed a private complaint before JMFC, Gwalior under section 138 of the Negotiable Instruments Act on the basis of allegations that the complainant has granted loan of Rs.86 lacs to the petitioner and in lieu thereof petitioner issued two cheques details of which are mentioned in the petition memo which got dishonoured and therefore, the case has been filed under section 138 of Negotiable Instruments Act. Cognizance has been taken by the trial Court. During cross examination, complainant in para 10 has admitted that he is engaged in occupation of Priesthood and is filing income tax return for last 3 to 4 years through his Chartered Accountant. Further in para 11 of his cross-examination complainant admitted the fact that he granted loan of Rs.86 lacs to the petitioner but the date has not been mentioned in the complaint and also shown his ignorance about mentioning of the loan in his income tax returns. Therefore, petitioner had occasion to file application under section 91 of CrPC in which he sought bank statement of complainant through which he withdrew Rs.86 lacs. Similarly petitioner sought copy of PAN card and address proof of respondent/complainant as well as income tax returns of financial year 2011-12, 2012-13, 2013-14 etc. 3. Respondent opposed the prayer made by the petitioner by filing reply of the said application. In the reply, he admitted the fact regarding submission of income tax returns but he raised the point that the stage on which petitioner has sought those documents are not proper stage, therefore, he prayed for dismissal of the application. Learned Court below considering the rival submissions, dismissed the application preferred by the petitioner, mainly on the ground that petitioner cannot seek document under section 91 of CrPC during cross examination of complainant. Petitioner can avail this remedy only when his evidence would start. Learned Court below considering the rival submissions, dismissed the application preferred by the petitioner, mainly on the ground that petitioner cannot seek document under section 91 of CrPC during cross examination of complainant. Petitioner can avail this remedy only when his evidence would start. Challenging the order of trial Court, petitioner preferred, criminal revision before the revisional Court but the same was not maintainable, therefore, this petition has been preferred by petitioner under section 482 of CrPC. 4. According to learned counsel for the petitioner, trial Court has erred in passing the impugned order and rejecting the submission advanced by the petitioner. According to him, complainant has filed the case for dishonoure of cheque to the tune of Rs.86 lacs, therefore, it is highly improbable that the said amount is not routed through the Bank nor reference of said transaction would find place in income tax returns. Therefore, the document which may establish innocence of petitioner and which have material bearing in the controversy can be brought through application under section 91 of CrPC during the stage of cross examination of complainant. He relied upon the judgment of Hon'ble Apex Court in the matter of State of Orissa v. Debendra Nath Padhi [ (2005)1 SCC 568 ], Helios and Matheson Information Technology Limited and others v. Rajeev Sawhney and another [ (2012)1 SCC 699 ], John K. Abraham v. Simon C. Abraham and another [ (2014)2 SCC 236 ], as well as the judgment of this Court in the matter of Bharat Bhai Patel v. Smt. Radha Agrawal, [ 2014(I) MPWN 70 ] and Ashish v. Vaibhav [ 2016(III) MPWN 40 ]. 5. On the other hand, learned counsel for the respondent opposed the prayer made by petitioner and submits that the trial Court has rightly passed the order because the application under section 91 of CrPC could have been filed only at the stage of evidence of the accused/petitioner and not before that. He prayed for dismissal of petition. 6. Heard learned counsel for the parties and perused the documents appended thereto. 7. From the pleadings of the parties and admission of the complainant, it appears that the complainant has categorically admitted the fact that he is submitting income tax returns for last 3 to 4 years and he has handed over a sum of Rs.86 lacs in cash to the petitioner. 7. From the pleadings of the parties and admission of the complainant, it appears that the complainant has categorically admitted the fact that he is submitting income tax returns for last 3 to 4 years and he has handed over a sum of Rs.86 lacs in cash to the petitioner. The amount as mentioned in the complaint is a huge amount and in all probability in usual course of business either, is reflected in the accounts book, bank account, income tax return etc., therefore, petitioner moved an application under section 91 of CrPC so that controversy can get clarity in respect of factual averments. Therefore, petitioner was right in moving the application seeking those documents on record to confront the complainant about the statement made by him vis-a-vis documents. 8. Now the question is whether petitioner could have availed of such opportunity under section 91 of CrPC while confronting the complainant. The trial Court has relied upon the judgment rendered by the Hon'ble apex Court in the matter of State of Orissa v. Debendra Nath Padhi (supra), wherein the Hon'ble apex Court has held that remedy of application under section 91 of CrPC is not available to the accused at the time of framing of charge. In fact the said judgment was in respect of right of accused under section 91 of CrPC at the time of framing of charge because this aspect has been clarified in subsequent judgment by the Hon'ble apex Court in Helios and Matheson Information Technology Limited and others (supra), where in para 19 it has been clarified as under : “19. So also the decision in Debendra Nath Padhi (supra), does not help the petitioner. That was a case where the question was whether at the stage of framing of charge, the accused could seek production of documents to prove his innocence. Answering the question in the negative this Court held : "The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973 (for short the "Code") grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. No provision in the Code of Criminal Procedure, 1973 (for short the "Code") grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case [ (1996)9 SCC 766 ], holding that the trial Court has powers to consider even materials which the accused may produce at the stage of section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence." 9. This aspect has further been dealt by Bombay High Court in the case of Shri Pravin Kumar v. State [2006(2) Crimes 530], wherein it has been clarified that Supreme Court in the said case was considering a limited issue whether trial Court at the time of framing of charge could consider the material filed by the accused and it answered the said issue in the negative. It is well known that the accused can establish or probablise his defence through the prosecution witnesses as well and being so, if any document or thing is required to establish that defence then there is no reason why the Court should not accept the said contention. Here, the necessity or desirability of documents to be summoned under section 91 of CrPC in defence of accused is paramount consideration. 10. In the present case, complainant has specifically averred regarding his source of income as priesthood and earning Rs.30-40,000/- per month, therefore, the question naturally arises about huge sum lent by him to the petitioner that too through the mode of cash payment. Therefore, the documents were sought to be summoned by the petitioner, are necessary and desirable in the fact situation of the case. Therefore, the documents were sought to be summoned by the petitioner, are necessary and desirable in the fact situation of the case. The Hon'ble apex Court in the matter of John K. Abraham (supra), has dealt with in respect of necessity and desirability of the document for drawing presumption in favour of complainant under section 118 read with 139 of the Negotiable Instruments Act burden lies on him to show that he had the requisite funds for advancing money/loan in question to accused. 11. Even otherwise, it is well established principle of law that free and fair trial is sine qua non of Article 21 of Constitution of India and is main object of criminal law. Therefore, it should not be hampered in any manner and fair trial must be afforded to every accused. Denial of fair trial amounts to injustice to the accused. On this aspect also, it is apparent that present petitioner must get a chance to question the complainant with the documents in hand for establishing his innocence, if any, that is also necessary in view of the provisions of section 138 of Negotiable Instruments Act which draw certain presumption in favour of complainant. These documents are relevant to adjudge financial capacity of complainant. The complainant has to prove that there is legally recoverable debt payable by the accused to him and the document sought by the petitioner/accused is one of such ways where authenticity and veracity of the claim and counter claim can be tested. 12. Therefore, in the fact situation of the case, trial Court has erred in rejecting the application preferred by the petitioner. Once the necessity and desirability of documents to be summoned has been established then the trial Court ought to have called the documents to confront the witnesses. For doing complete justice between the parties, it is imperative that petitioner be allowed to confront the complainant by the documents to be summoned in defence of the accused. 13. Resultantly, the impugned order is hereby set aside and the application preferred by the petitioner under section 91 of CrPC is hereby allowed. Matter is remanded back to the trial Court for consequential follow up action to summon the documents as mentioned in the application preferred by petitioner under section 91 of CrPC while affording opportunity to confront the complainant with the aid and support of those documents. 14. Matter is remanded back to the trial Court for consequential follow up action to summon the documents as mentioned in the application preferred by petitioner under section 91 of CrPC while affording opportunity to confront the complainant with the aid and support of those documents. 14. Petition is disposed of accordingly.