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IN THE HIGH COURT OF PUNJAB AND HARYANA
Arvind Singh Sangwan, J.
Vijay Kumar Ghai - Appellant
Versus
Pritpal Singh Babbar - Respondent
CRM-M-44016-2016 (O&M)
Decided On : 25-02-2020
ITR - N.I. Act - Section 138 - [Section 138 of the Negotiable Instruments Act] - The court allowed the petitioner to summon the record relating to the income tax returns of the complainant for specific years and to examine a Clerk of State Bank of India, subject to payment of costs. The court also directed the trial court to conclude the trial expeditiously.
Fact of the Case:
The respondent filed a complaint under Section 138 of the N.I. Act against the petitioner for dishonoring a cheque. The petitioner sought to produce the income tax returns of the complainant, which was declined by the trial court. The petitioner argued that the ITRs of the complainant for the relevant period were necessary for a fair trial.
Finding of the Court:
The court found merit in the petitioner's argument and set aside the orders dismissing the application to produce ITRs and declining the extension of time to deposit costs. The court allowed the petitioner to summon the ITRs and examine a witness, subject to payment of costs, and directed the trial court to conclude the trial expeditiously.
Issues: The issues revolved around the admissibility of additional evidence, the necessity of ITRs for a fair trial, and the delay in the proceedings.
Ratio Decidendi: The court held that the ITRs for the relevant period were necessary for a fair and just decision of the trial, and the trial court's findings were factually incorrect. The court also considered the impact of demonetization on the petitioner's ability to deposit costs.
Final Decision: The petition was allowed, and the impugned orders were set aside. The petitioner was permitted to summon the ITRs and examine a witness, subject to payment of costs. The trial court was directed to conclude the trial expeditiously.
JUDGMENT
Arvind Singh Sangwan, J. (Oral) - Prayer in this petition is for setting aside the orders dated 27.10.2016 (Annexure P-7) and 21.11.2016 (Annexure P-10), passed by the trial Court in Complaint No. 8341/2013 dated 21.03.2012 titled as Pritpal Singh Babbar vs. Vijay Kumar Ghai, vide which an application filed by the petitioner/accused under Section 311 Cr.P.C. was dismissed and the prayer of the petitioner to produce on record the income tax returns of the complainant/respondent was declined.
2. Brief facts of the case are that respondent/complainant has filed a complaint under Section 138 of the N. I. Act against the petitioner on account of dishonouring of a cheque of Rs. 11 Lakh, which was allegedly given by the petitioner for repaying the said loan.
3. Learned counsel for the petitioner has submitted that as per the allegations in the complaint, the complainant has stated that he had advanced a loan of Rs. 11 Lakh to the petitioner/accused on 05.03.2008 byway of a demand draft and the petitioner was paying the interest of Rs. 8,250/- per month to clear the loan amount by February, 2012. It is further stated in the complaint that the petitioner was regularly paying the quarterly interest of Rs. 24,750/- to the complainant.
4. Learned counsel for the petitioner further submits that when the complainant appeared as his own witness as PW-1, in his cross-examination, he placed on record the photocopy of his ITRs for the years 2012-13, 2013-14, which are marked as Mark D3 to D6.
5. Learned counsel referred to cross-examination dated 21.01.2015, wherein the complainant has stated that he has been disclosing his income in the tax returns regarding interest received by him from the petitioner/accused, however, he has not produced the copy of the ITRs in Court and have only attached copy of ITRs with the complaint.
6. Learned counsel further argued that thereafter, the statement of the petitioner/accused was recorded under Section 313 Cr.P.C, in which he stated that he has taken a loan of Rs. 11 Lakh and has given a blank security cheque in the year 2008 and had paid Rs. 3,05,250/- to the complainant.
7. It is further submitted that the petitioner has led his defence evidence, in which he has attached a copy of the ledger account of the complainant, wherein it has been shown that petitioner has been the installments.
8. Learned counsel for the petitioner further submitted that under a bona fide impression that the complainant has already placed on record the ITRs for the relevant period as Mark D3 to D6, he could not verify whether the same relates to the relevant period as in this case, the relevant period is 2008-09, 2009-10, 2010-11 and 2011-12. It is further stated that the petitioner has obtained the ITRs of the complainant for the aforesaid period and found that in the column of 'income received from interest', it is stated to be 'nil' in all the ITRs.
9. Learned counsel has, thus, argued that this fact demolishes the case of the complainant as while appearing as PW-1, the complainant has stated that he has shown the interest received from the petitioner in his tax returns, whereas all the aforesaid ITRs of the relevant period do not reflect receiving of any interest and it supports the case of the petitioner that he has obtained an interest free loan from the complainant and in fact he was paying the installments towards the principal amount and not towards interest.
10. Learned counsel for the petitioner further submitted that immediately on closing the evidence, the petitioner moved an application under Section 311 Cr.P.C. for granting permission to lead additional evidence by way of producing the ITRs for the years 2008-09, 2009-10, 2010-11 and 2011-12, however, the said application was dismissed by passing the impugned order dated 27.10.2016 only with the observations that ITRs are already on record as Mark D3 to D6 and there is no need to allow the application, whereas this finding of the trial Court is factually i
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