1. This application under section 482 of CrPC has been filed, challenging the order dated 3-7-2017 passed by J.M.F.C., Gwalior in Criminal Case No. 10550 of 2009, by which the application, filed by the applicants under section 91 of CrPC for production of the Income Tax Returns of the respondent of the year 2009 -2010 and 2010-2011 has been rejected.

2. The necessary facts for the disposal of the present application in short are that the respondent has filed a criminal complaint under section 138 of Negotiable Instruments Act on the ground that the cheques of Rs. 2,25,000/- issued by the applicants, were returned by the bank on the ground of insufficient funds and the applicants have not paid the cheque amount in spite of service of statutory notice under section 138 of Negotiable Instruments Act.

3. The applicants filed an application under section 91 of CrPC, seeking a direction to the respondent to produce the Income Tax Returns of the year 2009-2010 and 2010-2011 on the ground that the respondent is a Government Employee and if he had given an amount of Rs. 2,25,000 to the applicants, then he must have disclosed the same in his Income Tax Returns.

4. The application was rejected by the trial Court, by order dated 3.7.2017 on the ground that the initial burden is on the respondent to prove his case and secondly, in the light of the judgment passed by the Supreme Court in the case of State of Orissa v. Debendra Nath Padhi, reported in AIR 2005 SC 359, at this stage, the application cannot be entertained.

5. Challenging the order passed by the Court below, it is submitted by the Counsel for the applicants, that the case is fixed for evidence of the respondent witnesses. It is obligatory on the part of the applicants to ask questions to the res-pondent with regard to the defence, which is intended to be taken by the applicants.

6. Heard the learned counsel for the applicants.

7. It appears that the applicants have not begun the cross-examination of the witness. Therefore, it cannot be said by the applicants, that unless and until all the documents, so wanted by them, are produced by the respondent, they would not cross-examine the respondent or his witnesses. The complaint has been filed by the respondent. It is for the respondent to decide that in what manner he would like to prove his case.

8. The Supreme Court in the case of John K. Abraham v. Simon C. Abraham, reported in 2014(I) MPWN 10=(2014) 2 SCC 236 has held as under :

“9. It has to be stated that in order to draw the presumption under section 118 read along with section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.''

9. Thus, it is clear that in order to draw presumption under section 139 of Negotiable Instruments Act, the complainant is required to discharge his initial burden. Therefore, it is for the complainant to decide that in what manner, he would like to prove its case. The accused cannot direct the complainant to act in a particular manner. Further, whether the respondent had rightly paid the Income Tax or not, is a matter which is to be considered by the Income Tax Department and the respondent can always prove the availability of required funds by leading evidence.

10. Therefore, this Court is of the considered opinion that the trial Court did not commit any mistake in rejecting the application filed under section 91 of CrPC.

11. Accordingly the order dated 3.7.2017 passed by J.M.F.C., Gwalior in Criminal Case No. 10550 of 2009, is hereby affirmed.

12. The application fails and is hereby dismissed.