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2019 DIGILAW 337 (MP)

Fredi Joseph Hedri v. Ghanshyam Verma

2019-04-25

RAJEEV KUMAR SHRIVASTAVA

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JUDGMENT : Shri Pawan Kumar, learned counsel for the applicant. Shri J.S. Rathore, learned counsel for the respondent. 2. This petition under section 482 of the Code of Criminal Procedure (in brief “the Code”) has been filed against the order passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 624/2016, whereby the Court below rejected the application under section 91 of the Code. 3. The applicant is facing trial for the offence under section 138 of the negotiable Instruments Act (in brief “the NI Act”). After examination of non-applicant/complainant, the applicant has filed an application under section 91 of the Code for summoning the income tax return for the year 2013-2014 of the non-applicant. Learned JMFC rejected the application. Hence, applicant has filed this petition. 4. Learned counsel for the applicant submits that non-applicant in his cross-examination in para No. 12 admitted that he files income tax return by explaining the income arising out of his business and other sources, how much money he earned, how much spent and also how much money he has given to the people as loan for the year 2013-2014. These documents are relevant to judge the financial capacity of the non-applicant. In view of such admission, Court should have issued directions for producing the same. For this purpose, he placed reliance on the judgment of this Court in the case of Ajay Kumar Bharadwaj vs. Anand Vijan, 2004(II) MPWN 13 . There is a presumption under section 139 of the NI Act in favour of the non-applicant, therefore, to rebut such presumption, these documents are relevant. For this purpose, he placed reliance on the judgment of Hon’ble Apex Court in the case of K. Subramani vs. K. D. Damodara Naidu, 2015 (I) Crimes 48 SC. 5. On the other hand, learned counsel for the non-applicant supports the impugned order and submits that the non-applicant in his cross-examination deposed that the disputed transaction is not mentioned in his income tax returns, therefore, these documents are not relevant for this purpose. 6. Heard learned counsel for the parties and perused the record. In the cross-examination, non-applicant admitted that from the year 2013-14 he files income tax return and he can give details of income tax return from the year 2013-2018. 6. Heard learned counsel for the parties and perused the record. In the cross-examination, non-applicant admitted that from the year 2013-14 he files income tax return and he can give details of income tax return from the year 2013-2018. Court below has rejected the application on the ground that the Court has already rejected the application filed by the applicant for summoning the income tax details of non-applicant on 29-8-2018. The Court below has not considered that these documents are relevant to establish the financial capacity of the non-applicant at the relevant time. 7. With the aforesaid, I am of the view that the rejection of such application amounts to denial of fair trial. Therefore, the order passed by the Court below is not justified and is accordingly set aside. The application is allowed and the non-applicant is directed to produce the income tax return for the year 2013-2014 and also the details of the income tax filed by him for the year 2013-2018. 8. Accordingly, the petition is allowed as indicated above. 9. Copy of the order be sent to the trial Court for compliance. Petition allowed.