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2020 DIGILAW 57 (RAJ)

Merajuddin v. S. D. Gems

2020-01-06

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. The petitioner by way of this criminal misc. petition challenges the order dated 17th September, 2019, whereby an application moved under Section 91 Cr.P.C. calling for registration certificate of the firm, ITR and details of the firm has been rejected. 2. Learned counsel for petitioner submits that the application was moved with the purpose to establish his title at the level of complainant who claims himself to be proprietor of the firm and therefore, the application was relevant and the court ought to have called the record relating to the said documents. 3. Learned counsel relies on the judgment of the Supreme Court in the case of Milind Shripad Chandurkar Vs. M. Khan & Anr., reported in AIR 2011 SC 1588 to submit that locus to file a complaint can always be examined by the court. Learned counsel submits that for the purpose of filing complaint in relation to property concerned, the Apex Court in the aforesaid judgment has held as under: "22. Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a "payee" or "holder in due course" of the cheque. 23. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent No. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent No. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings." 4. I have considered the submissions and find that the application moved under Section 91 Cr.P.C. is with regard to calling documents by the court. Section 91 Cr.P.C. reads as under: "91. Summons to produce document or other thing. (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891) or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority." 5. From perusal of above, it is apparent that it is for the satisfaction of the concerned court whether certain documents are required to be called for the purpose of disposal of the case. However, this court is of the firm view that application under Section 91 Cr.P.C. cannot be entertained for the purpose of collecting evidence in support of or in defence of a case. Application moved by the petitioner comes in the said nature of collecting evidence in support of his defence which has rightly been rejected by learned trial court. 6. As regards the submission of learned counsel that the complainant himself proves that he is sole proprietor of the firm, is an issue to be decided in trial. The evidence has not yet been completed. The complainant may take up whatever evidence he has to produce and the petitioner would also be free to put up his defence. This court is of the opinion that at this stage, it would be extremely unfair to give any opinion with regard to the trial. Thus the law as held in Milind Shripad Chandurkar (supra) would have to be applied only at the time of final adjudication. 7. In view thereof, leaving it open for taking up all the arguments by the petitioner in the trial, this criminal misc. petition is dismissed so far as the impugned order dated 17th September, 2019 is concerned.