Madhya Pradesh High Court
Surendra Kumar Sharma Alias Choubey vs Raju Alias Rajendra on 12 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1472
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 21308/2019
Surendra Kumar Sharma
Vs
Raju @ Rajendra
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Shri K.N. Fakhruddin, learned counsel for the petitioner.
None for the respondent despite service.
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ORDER
(12.09.2019) Petitioner has filed this miscellaneous criminal case under Section 482 Cr.P.C. being aggrieved by the order dated 22.04.2019 in S.C.N.I.A No. 143/18 passed by CJM, Chhindwara whereby the learned CJM has rejected the application under Section 91 of Cr.P.C. filed by the petitioner.
2. According to case, the complainant has filed a private complaint under Section 200 of Cr.P.C. against the petitioner/accused for the offence punishable under Section 138 of N.I.Act contending that there was money transaction of Rs. 60,00,000/- between the parties regarding some property transaction and in this regard petitioner accused has issued a cheque of Rs. 30,00,000/- of Allahabad bank, Branch Chhindwada in favor of respondent/complainant which got dishonored on presentation. In proceeding, petitioner/accused has preferred an application under Section 91 Cr.P.C. contending that according to complainant, he gave amount of Rs. 60,00,000/- to the petitioner but he 2 M.Cr.C. No. 21308/19 has not mentioned that as to how and when by which mode he gave the same. There is also no whisper about any agreement and consent letter. Further, he contended in his application that to reveal the truth of the case, documents like bank statements, balance sheet, Income Tax Return, agreement and consent letter etc. belongs to complainant are required to show before the Court. Description of desired documents are reproduced as under :
vkosnd ls mDr nLrkost izLrqr djus dh ekWax 1- tuojh 2015 ls tuojh 2016 rd dh cSd a LVsVesaV ,oa cSysal'khV] 2- tuojh 2016 ls tuojh 2017 rd dh cSd a LVsVesaV ,oa cSysal'khV] 3- tuojh 2017 ls ekpZ 2018 rd dh cSd a LVsVesaV ,oa cSysal'khV] 4- o"kZ 2015 ls ysdj lu~ 2018 ¼ekpZ½ rd vkosnd }kjk vk;dj fjVuZ ¼fooj.kh½ ,oa O;olk; dh vkWfMV fjiksVZ] 5- vkosnd }kjk ftu&ftu cSd a ks ls jkf'k fudkydj vukosnd dks nh xbZ Fkh] mDr lacaf/kr cSad dh LVsVesaV o"kZ 2015 ls o"kZ 2018 ¼ekpZ½ rd dh A 6- vkosnd ,oa vukosnd ds chp laikfnr gqvk izkiVhZ [kjhnus&cspus dk lgefr i=@vuqc/a k i= dh izfrfyfi A 7- vkosnd dk lkgwdkjh@fxjoh j[kus dk yk;lsal A 8- ystj cqd o"kZ 2015 ls ekpZ 2018 9- dS'kcqd ¼jksdM+ [kkrk½ o"kZ 2015 ls ekpZ 2018 10- vkosnd ds izkWiVhZ O;olk; ls lacaf/kr izkWiVhZ Mhyj dk yk;lsal ,oa mDr iath;u ¼QeZ@daiuh½ dk uke ,oa mDr QeZ@daiuh esa fdrus Hkkxhnkj gS] mu lcdh laiw.kZ tkudkjh ls lacfa /kr nLrkost miyC/k djk;as A 11- vkosnd ds izkWiVhZ O;olk; QeZ@ daiuh esa leLr Hkkxhnkjksa dk Hkkxhnkjh foys[k dh izfrfyfi miyC/k djk;sa A 12- o"kZ 2015 ls ysdj lu~ 2018 ekpZ rd vkosnd }kjk fdruh tehus dz; dh xbZ vkSj fdruh tehuksa dh fcdzh dh xbZ] mudh jftLVªh ,oa vuqca/k lfgr nLrkost miyC/k djkosa A
3. The learned CJM has relied upon the judgment of Hon'ble Apex Court in the case of State of Orrisa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 586 and ordered that accused/petitioner can not filed an application under section 91 Cr.P.C at the initial stage of trial when the particular of offence are to be stated.
4. Learned counsel for the petitioner submits that according to complainant in the month of January 2017, he has given 60 Lakh Rupees to the accused/petitioner whereas on 18.11.2016 demonetization started in 3 M.Cr.C. No. 21308/19 India and during that period it was very difficult to everyone to withdraw amount as limit for withdrawal was fixed by the Government. Thus, details are required to be given to show that complaint case is false and cheque is misused by the complainant. He further submits that petitioner is demanding details of bank account, income tax return, cash book, audit report to find out the sources of money of the complainant. Complainant has also not filed written agreement of sale and purchase of plots even in complaint no whisper about the number, exact location of plot. Therefore, learned CJM erred in rejecting the application. He further submits that petitioner is agriculturist and small businessmen and he has given the cheque as guarantee which has been misused by the complainant by filling huge amount of Rs. 30 Lakh without any permission and knowledge of applicant. Therefore, demanded documents which are in possession of complainant are relevant and necessary to produce before Court to find out the truth. He prays for allowing this petition. In support of his contention, he has relied the judgment of this High Court in the case of S.K Singhal Fathechand Singhal Vs. State of M.P. reported in 1997 (2) MPLJ 220 and Surajmal Vs. Babulal reported in 2005 (1) MPLJ 6.
5. Heard and perused the case.
6. The petitioner/accused is facing trial for an offence under Section 138 N.I Act and he has preferred an application under Section 91 Cr.P.C. with the prayer that the complainant has stated that he has given the aforesaid amount to the petitioner/accused, thus, it is necessary to bring this fact into knowledge of the Court that from which bank, the aforesaid money was withdrawn by complainant and it is also mandatory 4 M.Cr.C. No. 21308/19 to call the necessary documents regarding bank statements and income tax return of the relevant years to find out the income of the complainant.
7. After considering the averments made in the application, and looking to the submissions of both the parties, the learned trial Court came to this conclusion that at the initial stage of trial when charges are to be stated, application filed under Section 91 Cr.P.C can not be entertained in view of the principle laid down in Debendra Nath Padhi's case.
8. Since, the learned CJM rejected the application being not entertainable, thus, before embarking on the facts of the case, it would be appropriate to consider legal aspect first. In the same sequence, I first read the provision of Section 91 of Cr.P.C. Provision is quoted 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."
9. Bare reading of the aforesaid provision, it is reflected that the Court is empowered to call any documents which are necessary to fair proceeding of the case. The Court can issue summons to the person whom possession the desirable documents are kept. The powers which has given 5 M.Cr.C. No. 21308/19 to Court under Section 91 of Cr.P.C. is discretionary in nature and same can be exercised judiciously and in proper manner. It also shows that the power to issue a summons for the production of a document or a thing is to be exercised whenever the Court considers that its production is necessary or desirable for the purposes of investigation, inquiry, trial or other proceeding. Power is available to the Court at every stage of proceedings contemplated under the Code. It has to be noticed that this power is available not only to the Court but also to any officer-in-charge of a police station and the only condition for the exercise of the power is that the production of the document or the thing should be necessary or desirable for purposes of the proceedings. The Supreme Court has considered the scope and ambit of Section 91 of the CrPC in Debendra Nath Padhi's case and held that Section 91 of the CrPC does not confer right on the accused to seek production of document to prove his defence at the stage of framing the charge and observed as under: -
"25.Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined 6 M.Cr.C. No. 21308/19 considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof."
10. In another case Om Prakash Sharma Vs. CBI Delhi reported in (2000) 5 SCC 679 the Hon'ble Apex Court has held as under:-
"The powers conferred under Section 91 are enabling in nature aimed at arming the Court or any officer in charge of a Police Station concerned to enforce and to ensure the production of any document or other things necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under the code, by issuing a summons or a written order to those in possession of such material. The language of Section 91 would, no doubt, indicate the width of the powers to be unlimited but the in-built limitation inherent therein takes it colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. The question, at the present stage of the proceedings before the Trial Court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted upon at the stage where the consideration is to be confined to find out a prima facie case and decide whether it is necessary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving enquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India Vs. Prafulla Kumar Samal & Anr. (1979) 7 M.Cr.C. No. 21308/19 3 SCC 4. Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the Court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The Court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the Court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the Court superior to that Court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in the exercise of judicial discretion by the Court and not of any rights concretised in favour of the accused."
11. In Debendra Nath Padhi's case, the Hon'ble Supreme Court further considered the matter with reference to its earlier decision in the matter of Om Parkash Sharma (Supra) and found it's observations are obiter dicta, relevant para is quoted as under: -
"27. In sofaras Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.8 M.Cr.C. No. 21308/19
28. We are of the view that jurisdiction under Section 91 of the Code when invoked by accused, the necessity and desirability would have to be seen by the court in the context of the purpose -- investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry."
12. The principle of law laid down in Debendra Nath Padhi's case (supra) was followed with approval by the Hon'ble Supreme Court in the matter of V.L.S. Finance Limited v. S.P. Gupta and another reported in (2016) 3 SCC 736. In the recent pronouncement of Hon'ble Supreme Court Nitya Dharmananda alias K. Lenin Vs. Gopal Sheelum Reddy reported in (2018) 2 SCC 93, the Hon'ble Supreme Court has again followed the principle of law laid down in Debendra Nath Padhi's case (supra) and held that defence has no right to invoke Section 91 of the CrPC dehors the satisfaction of the Court, at the stage of charge and observed as under: -
"8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/ prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet. It does not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at the stage of charge."
13. On reading of the above cited judgment, it becomes clear that the superior Court can intervene only in case where the discretion exercised by the lower Court neither judiciously nor judicially and there is gross failure to exercise the discretion of the Court. The Superior Court should not interfere in the discretion of the learned lower Court in a routine fashion. It is also manifest from the above cited judgment that the power of Court under Section 91 Cr.P.C. is unlimited but at the same time 9 M.Cr.C. No. 21308/19 there is limitation as to which stage or point of time, Court may exercise it power under Section 91 Cr.P.C. The Court has to see the compulsion of necessity and desirability of the document to the context of the purpose which is called for. A police officer may file an application under Section 91 Cr.P.C. at any of the stages but the accused can seek such order only at the stage of defence, he has no right conferred to produce document in his possession to prove his defence at the stage of framing of charge. It is also gathered from the judgments of Ho'ble Supreme Court that necessity and desirability of the document is to be examined considering the stage when such a prayer is made and the party who makes it, whether police or accused.
14. Though, the present case is originated by filing a private complaint under Section 200 Cr.P.C. and its procedure is quite different with the procedure of warrant trial but bare perusal of impugned order it seems that the in the case particulars of offence are to be stated to accused under section 251 Cr.P.C, thus, the case is said to be in initial stage of trial. Therefore, in view of the principle laid down in Devendra Nath Padhi's case, no error is found in the impugned order passed by learned CJM.
15. Apart from that, in the present case, there is a dispute regarding dishonoured of the cheque amounting of Rs. 30,00,000/-. The accused took the ground that earlier he had given the aforesaid cheque as a guarantee, but the complainant has misused the same. Thus, in short it can be said that the petitioner wants to call the aforesaid bank statements and income tax return of the complainant to determine the source of income of the complainant. It is also necessary to this Court to think about this fact that if the complainant shall not file the proof of his source of 10 M.Cr.C. No. 21308/19 income or income tax return then what would be its effects, on the case of complainant and what can presume by the Court in this regard. It is held by the Coordinate Bench of this High Court in Cr.R. No. 5263/18 (Shrimati Ragini Gupta Vs. Piyush Dutt Sharma) that mere non filing of income tax return, would not automatically dislodge the source of income of the complainant. Non payment of income tax is a matter between the revenue and assesses. No adverse inference can be drawn in this regard only because of absence of Income Tax return.
16. Other documents which are requested to call are seems to be undesirable at this stage. Petitioner accused has also not dully specified the particulars of the documents so desire.
17. In view of the above discussion, this Court does not found any apparent error to interfere in the discretion of the learned JMFC. The pronouncement referred by the petitioner's counsel is having different set of facts and do not applicable in the present case.
18. Accordingly this petition is dismissed. However, petitioner shall be a liberty to revive his prayer, after completing cross examination of the complainant, if the facts and circumstances of the case is permitted to do the same.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.16 10:23:24 +05'30'