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2024 DIGILAW 368 (KAR)

Mahathru Technologies v. Creative Infotech

2024-06-28

M.NAGAPRASANNA

body2024
ORDER M. Nagaprasanna, J. - The petitioner/accused and the respondent/complainant were before the XI Additional Small Causes Judge and ACMM, Court of Small Causes in Bengaluru in C.C.No.60105 of 2018 for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). They are now before this Court calling in question an order dated 18-12-2023 passed by the concerned Court in C.C.No.60105 of 2018 on an application filed by the petitioner under Section 91 of the Cr.P.C., in which he consequently sought a prayer to allow the application filed by him in its entirety. 2. Heard Sri Anand Muttalli, learned counsel for the petitioner and Sri M.T.Nanaiah, learned senior counsel appearing for the respondent. 3. Facts, in brief, germane are as follows:- The complainant and the petitioner had transactions between them. The transactions led to issuance of certain cheques by the petitioner in favour of the respondent. Those cheques having been dishonoured under the endorsement 'stop payment', the complainant knocks at the doors of the concerned Court invoking Section 200 of the Cr.P.C., by registering a case for offence punishable under Section 138 of the Act. The proceedings have gone on before the concerned Court. The petitioner, at one point of time, filed an application under Section 311 of the Cr.P.C., seeking to summon a representative of Apple Company to bring in documents for the period between 2016 and 2020 along with invoices. The concerned Court dismissed the application filed by the petitioner, which comes to be challenged before this Court in Criminal Petition No.10923 of 2023. The petitioner then withdraws the said petition, with liberty to seek information from the appropriate Court through appropriate proceedings. It is after that, the petitioner files the application under Section 91 of the Cr.P.C., seeking a direction to the complainant to produce documents relating to CRT/claims along with invoices containing UDID numbers given/uploaded to Apple Company for the period 2017-18 to 2019-20. The concerned Court, by the impugned order, partly allows the application only for the period 2018, by directing production of the said documents with a rider 'if any'. Therefore, the petitioner/accused is before this Court calling in question the said order. 4. The learned counsel appearing for the petitioner would vehemently contend that the documents that are sought are relevant. The concerned Court, by the impugned order, partly allows the application only for the period 2018, by directing production of the said documents with a rider 'if any'. Therefore, the petitioner/accused is before this Court calling in question the said order. 4. The learned counsel appearing for the petitioner would vehemently contend that the documents that are sought are relevant. They are documents pertaining to the period or invoices which contain UDID numbers uploaded to Apple Company between 2017 and 2020. It is the submission of the learned counsel for the petitioner that usage of the word 'if any' in the order would make it directory and not a direction to produce the documents. According to the learned counsel, those documents are available with the respondent and that would clinch the issue, as when the respondent had to supply materials to its consumers, it was necessary for it to raise invoices with Apple Company. The respondent is willfully not submitting the documents as they are against it. Without the CRT claims, it is the submission of the learned counsel, that invoices raised to educational institutions cannot even be processed. He would submit that the application should be allowed in its entirety with no rider 'if any'. 5. Per contra, the learned senior Sri M.T. Nanaiah appearing for the respondent would vehemently refute the submissions contending that there is no error in the order passed by the concerned Court, as it has in fact directed to produce invoices with UDID numbers, if any. The complainant has categorically stated in the cross-examination that he will not sell the gadgets/goods with UDID numbers. It is his deposition that goods are sold without UDID numbers and there is no question of a positive direction directing production of the same. He would seek dismissal of the petition. 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 7. The afore-narrated facts are not in dispute. The transactions between the parties leading the complainant to the concerned Court are all a matter of record. Both the parties were before the concerned Court in several proceedings is also a matter of record. They are all not germane for consideration of the present lis. What becomes necessary to be noticed is the impugned proceedings. The transactions between the parties leading the complainant to the concerned Court are all a matter of record. Both the parties were before the concerned Court in several proceedings is also a matter of record. They are all not germane for consideration of the present lis. What becomes necessary to be noticed is the impugned proceedings. The petitioner files an application before the concerned Court under Section 91 of the Cr.P.C. The application is preferred on 02-12-2023. What is sought in the application is germane to be noticed. The relevant portion of which reads as follows: '............ 7. It was then learnt that the serial number wise details of laptop were found to be irregular on billing/ invoice pertaining to various invoices. It was shocking to learn that UDID numbers mentioned in invoice No.80, 88 and 94 are repeated in invoice No.100, similarly UDID numbers appeared in invoice No.140, 141 and 160 are repeated in invoice No.188, and further UDID number shown in invoice No.120, 194, 207, 208 and 319 are repeated in invoice No.296. It is clear from the invoices that the complainant has created the fake invoices in collusion with the employees by name Late Smt. Kavitha Waghmore and Smt. Vasudha Shenoy. .. .. ... 9. That the complainant has created fake invoices on several occasions by not mentioning UDID numbers at the time of billing/raising invoices to the Accused, but on verifying with the serial number wise details which were submitted by the Complainant before the Wilson Garden Police Station, it was shocking to learn that several UDID/serial numbers in various invoices have been repeated. Further, the complainant has created fake invoice by prefixing alphabet 'S' to the UDID numbers appeared in several invoices. Similarly, the complainant has created fake invoice by prefixing alphabet zero 'O' and alphabet 'O' appeared several other invoices and found out that series with alphabet 'O'. .. .. ... 11. The CRT/Claims along with invoice and serial numbers are to prove that the Complainant has raised the invoice against the Accused for the laptops which are supplied to the educational institution and to prove the same the UDID/serial numbers in the CRT/Claims are essential. 12. .. .. ... 11. The CRT/Claims along with invoice and serial numbers are to prove that the Complainant has raised the invoice against the Accused for the laptops which are supplied to the educational institution and to prove the same the UDID/serial numbers in the CRT/Claims are essential. 12. The documents that are produced and exhibited by the Accused to prove that the Complainant has repeated and duplicated the UDID numbers in Invoice No.100 from Invoice No.80, 88 and 94 and similarly with other invoices shows the guilty mind of the Complainant.' Broadly the claim of the accused was that the complainant has created fake invoices in respect of the accused by using UDID numbers to the laptops already sold to educational institutions. He, therefore, seeks those invoices between 2017 and 2020. The complainant filed its detailed objections to the application contending that invoices were never raised with UDID numbers and, therefore, the question of producing invoices which contained UDID numbers is an impossibility to achieve. The concerned Court considering those submissions rendered the impugned order allowing it in part. The reason for allowing it in part reads as follows: 12. As per this deposition it is clear that what is stated in Ex.D.2 and 3 are not proper according to complainant himself. They are for the period of 2018 and Ex.D.3 is serial number wise details of 2018 and 2019. The cheque involved in this case is with respect to transaction of the year 2018. When complainant himself admits that what is stated in Ex.D2 and 3 is all not correct then, accused shall be given opportunity to make out his defense, with respect to genuineness of the invoices produced in the above case. It is specifically mentioned by the accused in his application that, there is strong reason to believe that complainant has created fake invoices by using the UDID numbers of laptops which are already sold to the educational institutions by showing the same to the accused. 13. As such, in the opinion of this Court accused should be given opportunity to make out his defense in the interest of justice. The document that accused seeking CRT claims for the period 2017-2020. 13. As such, in the opinion of this Court accused should be given opportunity to make out his defense in the interest of justice. The document that accused seeking CRT claims for the period 2017-2020. But, the transaction involved in this case is only of the year 2018 and only to that extent complainant should be directed to produce CRT claims along with copy of invoices with UDID numbers if any. It is true that this Court has rejected earlier application under Section 91 of Cr.P.C and Section 311 of Cr.P.C filed by the accused. The scope of those applications and prayers made therein were different. As such, there is no bar to entertain this application to the limited extent as mentioned above. If this application is also rejected, in the opinion of this Court accused will be deprived of an opportunity to prove his defense as permitted under law. As such this application deserves to be partly allowed only in respect of the year 2018 transaction. Hence, I answer this point partly in the Affirmative. 14. Point No.2: In the light of above discussion I proceed to pass the following: ORDER The application filed by the accused U/Sec.91 Cr.P.C is hereby partly allowed. Complainant is directed to produce documents relating to CRT claims with invoice UDID numbers if any made by him before Apple Company for the year 2018. Prayer to summon CRT claims of 2017, 2019 and 2020 is rejected.' (Emphasis supplied in the original) The complainant is directed to produce the documents relating to CRT claims with invoice UDID numbers, if any, made by it before Apple Company for the year 2018. The prayer to summon documents for the years 2017, 2019 and 2010 is rejected. The reason assigned by the concerned Court is cogent. The transaction involved, in the case at hand, is for the year 2018, as the cheque is dishonoured during the year 2018. Therefore, it is the order that only the documents pertaining to 2018 are required to be produced. Since the contention was that it is impossible to produce, the Court allows the application with a rider 'if any'. The accused claiming to be aggrieved is now before this Court contending that fakeness of the invoice can be gathered only when it is compared with others. Therefore, the application ought to have been allowed in its entirety up to the year 2020. The accused claiming to be aggrieved is now before this Court contending that fakeness of the invoice can be gathered only when it is compared with others. Therefore, the application ought to have been allowed in its entirety up to the year 2020. This submission sans substance. 8. The cheque is dishonoured in the year 2018. Repeated attempts are made by the petitioner initially by filing an application under Section 311 of the CrPC and the rejection of it having become final, is now wanting the invoices even between the period 2017 and 2020 to be produced, while transaction pertains only to the year 2018. The complainant has not called the said order in question. It has been directed to produce the documents by the concerned Court. The issue is a rider in the impugned order. I do not find any warrant to even interfere with the said rider as, if the application is to be allowed, it would be permitting the documents to come into trial, which are after the issuance of the cheque and registration of the case, which cannot be the scope of the lis before the concerned Court. It is always open to the concerned Court to draw an adverse inference in the event the documents are not produced. 9. It becomes apposite to refer to a judgment of the learned single Judge of the High Court of Madras in the case of B.MURUGESAN v. V. VIJAYA KUMAR - Crl.O.P. (MD) No.2651 of 2016 and Crl.M.P. (MD) No.1305 of 2016 decided on 30-082018 which considers the purport of an application under Section 91 of the Cr.P.C and answers in the following manner: 'This petition has been filed by the petitioner challenging the order passed by the Court below along with the application filed under Section 91 of Cr.P.C by the accused person directing the complainant to produce certain documents. 2. The learned counsel for the petitioner would submit that the S.T.C. No.130 of 2014 is of the year 2014 for an offence punishable under Section 138 of the Negotiable Instruments Act. The complainant was examined on 30-01-2015 and thereafter, the case was repeatedly adjourned for cross-examination. Thereafter, the accused person has filed the petition under Section 91 of Cr.P.C., in order to direct the complainant to produce certain documents. 3. The complainant was examined on 30-01-2015 and thereafter, the case was repeatedly adjourned for cross-examination. Thereafter, the accused person has filed the petition under Section 91 of Cr.P.C., in order to direct the complainant to produce certain documents. 3. The court below, by its order, dated 29-12-2015, had allowed the said petition without any discussion by merely stating that sufficient opportunity must be given to the parties in order to find out the truth. 4. The power conferred under Section 91 of Cr.P.C is a enabling provision which aims at arming the Court or any Officer in-charge of the Police Station to enforce and to ensure the production of any document which are necessary or desirable for the purpose of any investigation, enquiry, trial or other proceedings. Section 91 does not confer an absolute right. The sine qua non for an order under the said section is on consideration of the Court that the production of the document concerned is desirable and necessary for the purpose of the trial. The order of the Court below does not satisfy any of these requirements. 5. This provision cannot be invoked by an accused person against the complainant and force the complainant to produce certain documents before the Court. At the best the accused person can only put questions regarding the availability of the documents with the complainant and can make a request to the complainant to produce the documents. If the complainant does not produce those documents, it is always open to the trial Court to draw an adverse inference under Section 114 of the Indian Evidence Act. 6. That apart the Honourable Supreme Court in the judgment reported in State of Orissa v. Devendra Nathpathi reported in 2004 AIR SC 6813 has held that Section 91 of Cr.P.C cannot be invoked to permit a roving or fishing enquiry. In the present case it is seen that the accused person has sought for various documents from the complainant only to build up his case. 7. The order passed by the Court below is not in accordance with law and hence, the same is set aside. Accordingly, this Criminal Original Petition is allowed. In the present case it is seen that the accused person has sought for various documents from the complainant only to build up his case. 7. The order passed by the Court below is not in accordance with law and hence, the same is set aside. Accordingly, this Criminal Original Petition is allowed. It is made clear that if the documents that have been sought for by the accused person from the petitioner is not produced before the Court, the accused person can always work out his rights in accordance with law by asking to draw adverse inference, if a case to that effect is made out. Consequently, connected miscellaneous petition is closed.' The High Court of Madras following the judgment of the Apex Court holds that Section 91 of the Cr.P.C cannot be invoked to permit a roving or fishing enquiry. The Court was also interpreting a proceeding under Section 138 of the Act, as is obtaining in the case at hand. The Court observes that if the documents that have been sought for are not produced, the accused can always work out his rights in accordance with law, by moving the Court to draw an adverse inference. I am in complete agreement with what the learned single Judge has held, as the judgment of the Apex Court is followed therein. There is no warrant of interference with the impugned order that is passed. The petition deserves to be rejected, although with a rider that in the event the documents do not come about, adverse inference can be sought to be drawn by the accused against the complainant before concerned Court itself. 10. With the aforesaid observations, without interfering with the order impugned, the petition stands disposed.