Madhya Pradesh High Court
Mohammad Ayaaz Khan vs Mohammad Ishaq Khan on 19 April, 2018
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M.Cr.C.No. 1337/2018 Mohd. Ayaaz Khan Vs. State of M.P.
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice S.K. Awasthi
M.Cr.C. No. 1337/2018
Mohammad Ayaaz Khan
vs.
State of Madhya Pradesh
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Shri Vijay Sharma, learned counsel for the applicant.
Shri Vinod Kumar Bhavsar, learned counsel for the
respondent.
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ORDER
(Passed on 19th April 2018 ) The applicant has preferred this petition under Section 482 of the Cr.P.C. assailing the order dated 15/11/2017 passed by the Judicial Magistrate First Class, Indore in Criminal Case No. 16661/2013, whereby the application filed by the applicant under Section 91 of the Cr.P.C. has been rejected.
2. The facts giving rise to filing of this petition are that the respondent filed a complaint against petitioner alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 ( in brevity " NI Act"). In the averments made in the complaint that the applicant entered into an oral agreement to sale flat and penthouse to the respondent on account of sale consideration of Rs. 25.00 Lacs in cash. When the complainant/respondent inquired about the aforesaid property then he came to know that the flat and penthouse are not owned by the applicant. Then respondent demanded his money and applicant issued a cheque bearing No. 019494 dated 01/04/2013, drawn on HDFC Bank Limited, Branch at Palsikar 2 M.Cr.C.No. 1337/2018 Mohd. Ayaaz Khan Vs. State of M.P. Colony, Indore of Rs.25.00 Lacs to the respondent. When the respondent presented the said cheque to its Bank viz. United Bank of India, Branch at Khatiwala Tank, Indore for encashment, then same was returned unpaid due to insufficiency of funds in the account of respondent, vide cheque return memo dated 08/04/2013. Thereafter, respondent issued demand notice through his counsel to the applicant on 13/04/2013 by registered post, which was not received by the applicant and returned unclaimed. Then respondent filed a criminal complaint under Section 138 of the "NI Act" on 18/05/2013, which is pending before the court of Judicial Magistrate First Class, Indore. During trial, respondent examined himself as PW-1 and after recording the statement of the applicant under Section 313 of the Cr.P.C., the case is fixed for the defense evidence. At that stage applicant filed an application under Section 91 of the Cr.P.C. and made a prayer to the trial Court for production of certified documents pertaining to income tax returns of the respondent in the year 2011, which was rejected by the impugned order.
3. Learned counsel for the applicant submits that the trial Court has failed to consider that the income tax assessee is required to mention its assets and liabilities in his income tax return, therefore, if the averments of the complaint/respondent are true then he is required to mentioned the fact of given Rs. 25.00 Lacs to the applicant in his income tax return. Hence, the income tax return of the respondent is best piece of the evidence, which has been suppressed by the respondent. Thus, 3 M.Cr.C.No. 1337/2018 Mohd. Ayaaz Khan Vs. State of M.P. income tax returns of the respondent is a best evidence to bring the truth before the trial Court and at the stage of defense evidence, the applicant is entitled for issuance of summons to produce any document under Section 254(2) of the Cr.P.C., which is a valuable right given to the accused for proving his defense before the trial Court. Under these circumstances he prayed for setting aside of the impugned order and that the respondent may be directed to file certified copy of the income tax returns of the year 2011.
4. Per contra learned counsel for the respondent supported the impugned judgment by contending that the applicant has filed an application under Section 91 of the Cr.P.C. with intend to delay the trial. Therefore, he prays for the rejection of the petition.
5. I have noted the rival contentions raised by both the parties and also perused the records with the present petition.
6. From the perusal of the cross-examination of the complainant/respondent, it appears that in para 9 of his cross- examination, he admitted that he is income tax payee, however, no suggestion has been made on behalf of the applicant that whether in the year 2011-2012, he had filed his income tax returns or not. Further no question is asked from the respondent that whether in the income tax returns, he shown the amount which he has paid to the applicant as the consideration amount of flat and penthouse.
7. No doubt the presumption under Section 118 and 4 M.Cr.C.No. 1337/2018 Mohd. Ayaaz Khan Vs. State of M.P. 139 of the "NI Act" are in favour of the complainant and a heavy burden lies on the accused to prove his defense. However, in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in (2008) 4 SCC 54 and P. Venugopal Vs. Madan P. Sarathi reported in AIR 2009 SC 568, the Honb'le apex Court laid down that initial burden was on the complainant to prove existence of debt or liability on the accused. The presumption raised under section 139 of the N.I. Act does not extend to the extent that the cheque was issued for discharge of any debt or liability, which is required to be proved by the complainant.
8. Having careful consideration of the law laid down by Hon'ble Apex Court in the case of Krishna Janardhan Bhatt (supra) and P. Venugopal (supra) coupled with the facts and circumstances of the case, in view of this Court, the trial Court has rightly dismissed the application filed by the petitioner under section 91 of Cr.P.c and no interference under section 482 of Cr.P.C is warranted. However, detailed discussion on the material advanced by the applicant would prejudice his defence before the trial Court. Consequently, present petition fails and is hereby dismissed.
9. A copy of this order be sent to the concerned trial Court for information.
Certified copy as per rules.
(S.K. Awasthi) Judge skt Digitally signed by Santosh Kumar Tiwari Date: 2018.04.19 13:31:01 +05'30' 5 M.Cr.C.No. 1337/2018 Mohd. Ayaaz Khan Vs. State of M.P.