The burden of proof lies with the complainant in a case of cheque dishonour under Sec. 138 of the Negotiable Instrument Act, 1881, and summoning the books of account must be relevant to the case.

H.R. Panwar, J.-By this criminal revision petition under Secs. 397/401 CrPC, the petitioner complainant has challenged the order dated 29.2004 passed by Sessions Judge, Sri Ganganagar (for short the revisional Court hereinafter ) in a criminal revision No. 170/2004 filed by respondent No. 2 Sarwan Kumar against the order dated 9.7.2004 passed by Additional Chief Judicial Magistrate Ist Class, Sri Ganganagar (for short the trial Court hereinafter) in criminal case No. 106/2004, whereby the trial Court dismissed the application filed by respondent No. 2 under Sec. 311 CrPC, the revisional Court set aside the order of the trial Court and allowed the revision petition and directed the petitioner-complaint to appear before the trial Court for further cross-examination as also permitted respondent No. 2 to summon the account books of the firm Nanu Ram Girdhari Lal. Aggrieved by the order of revisional Court, the petitioner-complainant has filed the instant criminal revisional petition.

2. Briefly stated facts, relevant and necessary for disposal of the instant revisional petition are that a complaint was filed by the petitioner-complainant against respondent No. 2 under Sec. 138 of the Negotiable Instrument Act, 1881 (for short the Act hereinafter), inter alia, alleging therein that respondent No. 2 issued a cheque dated 212.2003 for a sum of Rs. 6,50,000/-in favour of the petitioner-complainant. On the presentation of the cheque of the Bank, it was dishonoured and returned unpaid on the ground of insufficiency of fund. A notice as envisaged under Sec. 138 of the Act was served on respondent No. 2. The respondent No. 2 despite service of notice, failed to pay the amount within the stipulated period and, therefore, the complaint was filed. The complainant appeared as PW. 1 before the trial Court and made statement. Thereafter, accused-respondent No. 2 was examined under Sec. 313 CrPC, made statement and produced DW.1 Vijay Tinna as a defence witness.

3. An application under Sec. 311 CrPC was filed by respondent No. 2 stating therein that complainant has not disclosed as to when and on what date, the sum of Rs. 6,50,000/-were loaned to accused-respondent and through what documents. It was further stated that complainant is running a business of commission agency and regularly maintains the books of account. The books of account of the complainant are necessary for the decision of the case and, therefore, if there is any endorsement in the books of account regarding the amount in question, then it has to be ascertained as to whether the accused-respondent has signed or not those books of account, therefore, summoning of the books of account is necessary. It was further alleged that the complainant be recalled for further cross-examination because in the matter no cheque has been used from the cheque book.

4. The trial Court after having considered the facts and circumstances of the case before it, dismissed the application filed by respondent No. 2 against which, the respondent No. 2 filed the revision petition before the revisional Court. The revisional Court allowed the revision as aforesaid.

5. I have heard learned Counsel for the parties. Perused the orders of trial Court as well as of revisional Court. I have carefully gone through the record of the trial Court.

6. The accused-respondent made statement under Sec. 313 CrPC, wherein he clearly stated that he was dealing with one Bhoj Raj as Bhoj Raj is trading in commission agent. He has also stated that the amount was paid to Bhoj Raj from his bank account. In his statement under Sec. 313 CrPC, respondent No.2 has not stated he had any transaction in commission agent with the petitioner complainant. In the statement of DW.1, nothing has been said by him about the trading of the petitioner-complainant in commission agent.

7. On close scrutiny of the application, it appears that respondent No.2 has not come with any specific case as to whether he had any transaction with the