Madhya Pradesh High Court
Baldev Thakur vs Anand Agarwal on 15 July, 2019
Equivalent citations: AIRONLINE 2019 MP 736
-( 1 )- MCRC.No.10244/2017
Baldev Thakur vs. Anand Agarwal
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
Misc. Criminal Case No.10244/2017
Baldev Thakur ..... PETITIONER
Versus
Anand Agarwal
..... RESPONDENT
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri D.K.Agarwal, learned counsel for the petitioner.
Shri S.S.Bansal, learned counsel for the respondent.
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Whether approved for Reporting : No
Reserved on : 12.04.2019
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ORDER
(Passed on 15 July, 2019) This petition under Section 482 of Cr.P.C. has been preferred by the petitioner, assailing the order dated 22.02.2017 passed by the -( 2 )- MCRC.No.10244/2017 Baldev Thakur vs. Anand Agarwal Judicial Magistrate First Class, Gwalior in Criminal Case No.6928/2012, whereby the application filed by the petitioner under Section 91 of Cr.P.C. has been rejected.
2. The facts leading to filing of present petition are that complainant/respondent filed a private complaint before the Court of Judicial Magistrate First Class, Gwalior contending that the complainant/respondent has given loan of Rs.17,00,000/- (Rs. Seventeen Lacs) and for repayment of loan of Rs.17,00,000/-, the petitioner issued Cheque No.937367 on 29.02.2012. When the cheque was presented in the bank on 03.03.2012, it was dishonoured for want of insufficient fund in the Bank Account of the petitioner. It is submitted that the complainant/respondent is involved in Kirana and property dealing business. Details of the transaction of loan of Rs.17,00,000/- are shown in the Income Tax Return of the respondent but with the written complaint dated 19.04.2012, the complainant/ respondent has not filed Income Tax Return for the financial year 2009-2010 (Assessment Year 2010-2011) to financial Year 2011-2012 (Assessment Year 2012-2013 to show his resources and alleged transaction of Rs.17,00,000/- and any evidence including Bank's statement of the complainant. However, the trial Court has allowed the complainant/respondent to file another affidavit dated 20.06.2016 for his examination-in-chief. The affidavit dated 20.06.2016 contains certain averments which are not available in the written complaint dated 19.04.2012.
-( 3 )- MCRC.No.10244/2017
Baldev Thakur vs. Anand Agarwal
3. It is submitted by learned counsel for the petitioner that filing of another affidavit for the purpose of recording of oral evidence is not permissible under Section 145 (1) of the Negotiable Instrument Act, 1881 because second affidavit for the purpose of recording of oral evidence has already been deprecated by the Hon'ble Apex Court. The averments made in the affidavit dated 20.06.2016 are not supported by any document.
4. The petitioner filed an application dated 26.10.2016 before the trial Court under Section 91 of Cr.P.C. seeking production of documents as mentioned in para 6 of the application. The trial Court failed to appreciate the necessity and desirability of the documents mentioned in the application dated 26.10.2016 and dismissed the application by the impugned order dated 22.02.2017 holding that the documents can be procured by the petitioner under R.T.I. Act. Against the order dated 22.02.2017 petitioner preferred Criminal Revision No.124/2017 before the Sessions Judge, Gwalior but thereafter in the light of the judgment of Hon'ble Apex Court in Sethuraman vs. Rajamanickam, 2009 (5) SCC 153, on the objection of the respondent the revision was withdrawn by the petitioner and thereafter this petition under Section 482 of Cr.P.C. has been filed for quashing the order dated 22.02.2017, praying therein that the application dated 26.10.2016 (Annexure P/4) may be allowed and complainant/ respondent be directed to produce documents mentioned in para 6 of the application dated 26.10.2016 before the trial Court and thereafter -( 4 )- MCRC.No.10244/2017 Baldev Thakur vs. Anand Agarwal the petitioner be permitted to cross-examination the respondent on the affidavit dated 19.04.2012 filed alongwith complaint.
5. To the contrary, learned counsel for the respondent opposed the submissions and prayed for dismissal of the application.
6. I have considered rival contentions of the parties and perused the documents available on record.
7. It is apparent from the record that the case is at the stage of complainant's evidence. This is not the stage where the documents sought to be summoned are required to be requisitioned. If the petitioner wants to produce or call for the aforesaid documents, he will be free to file fresh application under Section 91 of Cr.P.C. before the trial Court at the defence stage. Therefore, the trial Court has not erred in rejecting the application filed under Section 91 of Cr.P.C. at this stage. If any such application is filed by the petitioner at appropriate stage then the trial Court will consider the same independently in accordance with law without being influenced by this order.
8. Resultantly, this petition filed under Section 482 of Cr.P.C. has no substance and is hereby dismissed being devoid of any merits.
(Rajeev Kumar Shrivastava)
AK/- Judge.
ANAND KUMAR
2019.07.16
11:00:49 +05'30'