IMPORTANT POINTS:
Section 163 of the Act does not debar the person, who sought production of the document to cross-examine the person, who produced it and to tender evidence in this case. Before the production of the same, it was only a document; but after production of the same before the court, as per the request of the petitioner, it comes into evidence. So, it is a risk on the part of the petitioner of seeking production of the document from the custody of the 1st respondent. The gist of S.163 of Evidence Act is that it does not speak of admissibility or relevancy of a document nor does it speak of proof.

The petitioner herein is the accused in C.C. No.1717 of 2009 for the offences punishable under Section 138 of the Negotiable Instrument Act, 1881. The said proceedings was initiated on the basis of a private complaint filed by the 1st respondent. The allegation in the complaint filed by the 1st respondent herein is that the petitioner herein stood as a guarantor in a kuri transaction and had issued a cheque towards the defaulted instalments, which upon presentment for collection was dishonoured.

2. PW.1 was examined from the side of the complainant. The complainant's evidence was closed. The accused was questioned under Section 313 of the Code of Criminal Procedure, 1973(hereinafter referred to as 'the Cr.P.C.'). Then the case was posted for defence evidence.

3. The petitioner filed a petition under Section 91 of the Cr.P.C. to direct the complainant to produce statement of accounts with respect to the kuri transaction. The said petition was allowed and the document was produced. Thereafter, the petitioner/ accused wanted to cross-examine the complainant with reference to the statement of accounts, since there were discrepancies in the account. Thereafter, the petitioner has filed Cr.M.P. No.6944 of 2012 for recalling PW.1 to cross-examine him with specific reference to the statement of accounts.

4. The 1st respondent has filed a counter opposing the application and the court below has dismissed the application, without considering the argument advanced by the learned counsel for the petitioner. Highly aggrieved by the order, this Crl.M.C. has been preferred.

5. Now, the question to be considered is, whether the order passed by the court below is interfered with or not? Here, the petitioner has filed petition under Section 91 of the Cr.P.C. to direct the complainant/ 1st respondent to produce the statement of accounts with respect to the kuri transaction. The said petition was allowed and the document was produced. Thereafter, the petitioner has filed an application to recall PW.1 and to cross-examine him with reference to the statement of accounts, since there were discrepancies in the account, for which he has filed Crl.M.P. No.6944 of 2012 for recalling PW.1 to cross-examine him with specific reference to the statement of accounts.

6. Annexure-D is the copy of the M.P. No.6944 of 2012. The 1st respondent had filed a counter opposing the said application. The copy of the counter is produced as Annexure-E. As per Annexure-E objection, it was stated that the document which was asked by the petitioner to produce was before this Court. The document was produced as per the request on the side of the petitioner, who was an accused in this case. There is no ground to recall PW.1 to undergo cross-examine on the side of the petitioner and considering the objection raised by the 1st respondent, as well as on the basis of the provisions, the court below has dismissed the application.

7. The court below has relied on Section 163 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act') and stated that it precludes the accused to recall PW.1 to contradict or to challenge the document. Section 163 of the Act relies on the principle the party producing the document can insist other party to give it as an evidence. Here, the petitioner is relying upon the document produced and he only wanted to get certain clarifications regarding the account. In this connection, I have gone through the relevant portion under Section 163 of the Act. Section 163 of the Act says that, when a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

8. The ingredients of the provisions are:

(1) one party having given the other a notice to produce must call for that document

(2) such document should be produced by such other party

(3) the party calling for the d