2019 Supreme(Bom) 864

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, J.
Akhilesh - Appellant
Versus
Harikesh - Respondent
Criminal Writ Petition N No. 1062 of 2019
Decided On : 11-07-2019

Headnote:

Indian Penal Code, 1860 – Sections 420, 467, 468, 471 r/w 34 – Criminal Procedure Code, 1973 – Section 91 – Indian Evidence Act, 1872 – Sections 123 and 124 – Negotiable Instruments Act – Section 138 – Dishonour of Cheque – Writ Petition takes exception to the order passed by the learned Additional Sessions Judge, City Civil & sessions Court, Greater Bombay by which order Criminal Revision Application filed by the Petitioner Original Accused came to be rejected and resultantly the order passed by Metropolitan Magistrate, in C.C. allowing the application filed by Respondent No.2 original Complainant under Section 91 of the Criminal Procedure Code came to be confirmed – Petitioner has lodged complaint being C R against his uncle Chandrabali B Singh, Harikesh C Singh, who is Respondent No.1 herein, and one Naeem Ansari for the offences under Sections 420, 467, 468, 471 r/w 34 of the Indian Penal Code at Police Station alleging that after the demise of Petitioners father, the aforesaid persons have forged some stamp papers forging his signature and the signature of his mother and got the electric connection of Reliance Company in their name. – They were arrested in the said crime – Later on the brother of Chandrabali namely Suryamani B Singh was also arrested. During investigation it was revealed that the said Naeem Ansari has no role in the said crime. – However, the police have recorded the statement of said Naeem Ansari in which he has stated that during custody Respondent No.1 herein Harikesh informed him that he has stolen one signed blank cheque of the Petitioner herein. – On such disclosure, second FIR has been lodged by the Petitioner herein for stealing his signed blank cheque at Kherwadi Police Station vide MECR – It is the case of the Petitioner that in order to take revenge, Respondent No.1, who is his cousin, has presented his blank signed cheque for encashment, however, the said cheque was dishonoured. – Therefore Respondent No.1 filed a complaint under Section 138 of the Negotiable Instruments Act against the Petitioner. – It is the allegation of the Petitioner that the said cheque is stolen and thereafter amount has been mentioned therein, and the said cheque being returned unpaid, that a false complaint under Section 138 of the Negotiable Instruments Act has been filed against him. – Whereas it is the case of Respondent No.1 Complainant that the said cheque has been issued by the Petitioner towards discharging his liability and, on its dishonour he has filed the said complaint. – Held, Cheque issued to Respondent No.1 when presented in bank was dishonoured and thereafter Respondent No.1 filed the complaint against the Petitioner. – Therefore the subject cheque and bank memo, on the basis of which the complaint under Section 138 of the Negotiable Instruments Act has been lodged are necessary and relevant documents for the purpose of inquiry/trial. – Admittedly the said documents are in the custody of the Investigating Officer in another case and, as rightly observed by the Sessions Court, calling the documents from the custody of Investigating Officer is not collecting the evidence for party. – Complaint filed by Respondent No.1 is at the stage of issuance of process and the cheque, which is directed to be produced is in the custody of the Investigating Officer in MECR registered at Police Station, is relevant before taking cognizance of the said complaint, and also yet the investigating in the said crime is not complete. – Once that cheque is produced by the Investigating Officer, the same could be returned to the said Investigating Officer immediately within two weeks after verifying and obtaining the photocopy of the same. – Metropolitan Magistrate has rightly held that if the investigating officer is directed to produce the cheque, bank memo for the purpose of evidence, on verifying and obtaining photocopy, the same can be returned to the investigating officer and no prejudice would be caused to either side. – The said order of the learned Metropolitan Magistrate has been confirmed by the learned Additional Sessions Judge in the Revision Application. – Additional Sessions Judge recorded the findings that those are material documents and it is very much necessary to call for both the documents for trial under Section 138 of the Negotiable Instruments Act. – Reliance sought to be placed by the learned counsel for the Petitioner on the judgment of Andhra Pradesh High Court reported in the case of Dhulipalla Veeraiah Choudary v/s. Kurra Veeraiah and another, (1988) CriLJ 274 is misplaced. – In the said case the order that has been passed by the Magistrate invoking the provisions of Section 91 directing the accused to produce the vehicle which was incriminatory in nature was not sustainable. – The facts of the said case and the facts in the present case are different. – Before taking cognizance, accused cannot be directed to produce the documents. – In the present case the application under Section 91 of Cr.P.C. for production of documents has been filed by Respondent No.1, who is not the accused and the said documents are seized during the investigation of another crime and are in the custody of Investigating Officer. – Writ Petition Dismissed