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2018 DIGILAW 331 (MP)

Prembabu Jain v. Devendra Kumar Chaudhary

2018-03-19

G.S.AHLUWALIA

body2018
ORDER 1. This application under section 482 of CrPC has been filed against the order dated 21.7.2016 passed by JMFC, Gwalior in Complaint Case No. 1895/2015 by which the application filed by the applicant under section 91 of CrPC has been rejected, by which the applicant had prayed for a direction to the respondent/complainant to produce his income-tax returns so as to establish that he was having sufficient funds to pay to the applicant. 2. The necessary facts for the disposal of the present application in short are that the complainant/respondent has filed a criminal complaint under section 138 of Negotiable Instruments Act on the allegation that he had given an amount of Rs. 18,90,000/- by way of loan to the applicant and after repeated request, he gave two cheques of Rs. 4,50,000/- and Rs. 4,45,000/- with assurance that the respondent may present the same and same will get encashed. Accordingly the respondent presented the cheques which were returned by the Bank on the ground of “insufficient funds”. After issuing the notice under section 138 of Negotiable Instruments Act, the respondent filed a complaint under section 138 of Negotiable Instruments Act against the applicant. 3. The applicant filed an application under section 91 of CrPC seeking a direction to the complainant/respondent to produce his income-tax returns so as to find out that whether the respondent had any sufficient funds to pay Rs. 18,90,000/- to the applicant or not? 4. The said application was rejected by the trial Court by order dated 21.7.2016. Being aggrieved by the said order, the present application under section 482 of CrPC has been filed. 5. During the arguments, it is submitted by the counsel for the applicant that the present applicant has filed three applications under section 482 of CrPC challenging the similar orders, out of which one has already been decided by this Court in his favour and the another has been reserved for order and the order has not been pronounced so far. 6. When this Court repeatedly requested the counsel for the applicant to provide a copy of the order which according to him has been passed in his favour, then the same was not made available. It was submitted that M.Cr.C.No. 3162/2018 has been reserved for orders. 6. When this Court repeatedly requested the counsel for the applicant to provide a copy of the order which according to him has been passed in his favour, then the same was not made available. It was submitted that M.Cr.C.No. 3162/2018 has been reserved for orders. Under these circumstances, this Court is left with no other option but to proceed further with hearing of this case and this Court does not find any reason to defer the hearing as the interim order is already operating in favour of the applicant. 7. The question involved in the present case is that whether the complainant is under obligation to produce his income-tax returns at the instance of the accused/applicant or the burden is on the complainant to discharge his initial burden. The most important aspect of the matter is that the applicant has not denied his signatures on both the cheques which are the subject matter of criminal complaint. 8. The Supreme Court in the case John K. Abraham v. Simon C. Abraham, reported in 2014(1) MPWN 10 = (2014) 2 SCC 236 has held as under : “9. It has to be stated that in order to draw the presumption under section 118 read along with section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.'' 9. This Court in the case of Dinesh Kumar Gupta v. Umesh Kumar Agrawal by order dated 19.7.2017 passed in M.Cr.C.No. 4188/2017 has held as under : “Thus, it is clear that in order to draw presumption under section 139 of Negotiable Instruments Act, the complainant is required to discharge his initial burden. Therefore, it is for the complainant to decide that in what manner, he would like to prove its case. The accused cannot direct the complainant to act in a particular manner. Further, whether the respondent had rightly paid the income-tax or not is a matter which is to be considered by the Income-tax Department and the respondent can always prove the availability of required funds by leading evidence.” 10. The accused cannot direct the complainant to act in a particular manner. Further, whether the respondent had rightly paid the income-tax or not is a matter which is to be considered by the Income-tax Department and the respondent can always prove the availability of required funds by leading evidence.” 10. Thus, it is clear that initial burden is on the complainant/respondent to discharge that he had paid the amount in question to the applicant/accused. Under these circumstances, it cannot be said that the applicant, who is facing prosecution under section 138 of Negotiable Instruments Act, is within his right to say that unless and until all the documents so wanted by him from the respondent/complainant are produced, he would not cross-examine the respondent or his witnesses. The complaint has been filed by the respondent. It is for the respondent to decide that in what manner he would like to present his case. So far as the question of lending money to the applicant and the income-tax return filed by the respondent/complainant is concerned, this Court in the case of Madhusudan Floor Mills Pvt. Ltd. and ors. v. Sanjay Mane by order dated 6.3.2018 passed in M.Cr.C.No. 7650/2017 [ 2018(II) MPWN 16 has held as under : “9. Thus, it is clear that in order to draw presumption under section 139 of Negotiable Instruments Act, the complainant is required to discharge his initial burden. Therefore, it is for the complainant to decide that in what manner, he would like to prove its case. The accused cannot direct the complainant to act in a particular manner. Further, whether the respondent had rightly paid the income-tax or not, is a matter which is to be considered by the Income-tax Department and the respondent can always prove the availability of required funds by leading evidence.” 11. Thus, it is clear that the filing of income-tax return and payment of income-tax is a question between Income-tax Department and the assessee. The complainant even in absence of income-tax returns may prove his case by leading cogent evidence. 12. Considering the facts and circumstances of this case, this Court is of the considered opinion that the trial Court did not commit any mistake in rejecting the application filed by the applicant under section 91 of CrPC Accordingly the order dated 21.7.2016 passed by JMFC, Gwalior in Complaint Case No. 1895/2015 is hereby affirmed. 13. 12. Considering the facts and circumstances of this case, this Court is of the considered opinion that the trial Court did not commit any mistake in rejecting the application filed by the applicant under section 91 of CrPC Accordingly the order dated 21.7.2016 passed by JMFC, Gwalior in Complaint Case No. 1895/2015 is hereby affirmed. 13. The interim order granted by this Court by order dated 30.1.2018 is hereby vacated. 14. The application fails and is hereby dismissed.