IMPORTANT POINT
Though Section 165 of Evidence Act confers discretion on Court but it casts duty also upon Court to exercise such discretion judiciously with abundant caution.

Gopal Krishan Vyas, J.—This petition under Section 482, Cr.P.C. has been filed by the petitioner seeking to challenge Order dated 5.9.2005 whereby the learned Chief Judicial Magistrate, Pali passed an Order suo moto exercising discretion under Section 165 of the Evidence Act. By Order impugned dated 5.9.2005, the complainant was directed for the production of documents after hearing final arguments on 31.8.2005. It is further Ordered that the case will be finally heard again on 30.9.2005.

2. According to facts of the case narrated by the petitioner, complaint was filed by non-petitioner complainant under Section 138, Negotiable Instruments Act, read with Section 420, I.P.C. alleging inter alia that the complainant financed for old Ambassador Car, 1990 model to the petitioner with a sum of Rs. 1,09,000/-. The said car bears Registration No. RJ-22-T- 0131. The repayment of the loan amount was to be made in 25 instalments on agreed terms and conditions and, in default, it was agreed that 36 per cent interest will be charged. It is submitted by the petitioner that complainant alleged that the petitioner did not make payment according to the instalments fixed and, upon reminders given by the complainant, he gave a cheque bearing No. 1711263 dated 28.8.2001 for the Rs. 57,000 drawn on Pali Urban Cooperative Bank Ltd., City Branch, Pali in favour of the complainant.

3. In the complaint, the complainant alleged that the said cheque was presented before the bank for encashment, however, it was dishonoured; and, consequently, the complainant filed complaint under Section 138 of the Negotiable Instruments Act. The learned Magistrate proceeded in the matter in accordance with the procedure and recorded evidence from the side of the complainant. Two witnesses were examined on 15.7.2003 and 24.7.2004. As per allegation, during the statement of complainant Mahendra Lalwani, PW. 1, certain documents were got produced from the side of accused-petitioner and most of them were admitted by the complainant in the cross-examination. It is submitted that other witnesses of prosecution, however, came with altogether different version and gave different explanation for the receipt and the same was admitted by Mahendra,

PW. 1.

4. It is contended that on a conjoint reading of the statements of prosecution witnesses PW 1 and PW 2 it reveals the fact that virtually all the documents which were got exhibited from the side of the petitioner were found proved and admitted by the witnesses. It is submitted that statement of the accused-petitioner was also recorded as DW 1 and it was specifically denied by the petitioner that the cheque for Rs. 57,000/- was given by him as alleged by the complainant. It is contended that, on the contrary, against the loan of Rs. 93,000/- the petitioner had paid Rs. 1,68,000/- and, at the time of procurement of the loan amount he had given five blank cheques to the complainant along with one blank stamp of Rs. 100/- which have been misused by the complainant.

5. After hearing arguments in the case from both the sides finally on 31.8.2005, the learned Court below fixed 5.9.2005 for pronouncement of Order. Court below, however, as per submission of the Counsel for the petitioner, on 5.9.2005 the Trial Court passed impugned Order whereby it has been observed that in the statement of the complainant, in his cross examination, it has come out that he is maintaining his account day-to-day and, in the said account, the account with regard to the petitioner is also available. It is observed in the impugned Order that the same has not been produced nor any excuse for the non-production of the same has been forthcoming. It is contended that the learned Trial Court, knowingly that the said document was not produced by the complainant and it was not exhibited by him on his own volition, passed Order to produce the record maintained by him with regard to loan account of the accused-petitioner before the Court. It is further Ordere