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2019 Supreme(MP) 726
The High Court of Madhya Pradesh
Rajeev Kumar Shrivastava, J.
Manoj Kumar Mittal – Appellant
Vs.
Deepak Agrawal – Respondents
MCRC. No. 7947/2018
Decided On : 14-01-2019
For the petitioner: Shri Pallav Tripathi, learned counsel
For the respondent: Shri Anshu Gupta, learned counsel
The discretion to call for a document under Section 91 of CrPC is vested in the court, and the stage of the trial is a relevant factor in considering such applications.
Headnote:
Section 91 of CrPC - Application for Calling of Document - The court rejected the petitioner's application under Section 91 of CrPC for calling a sale deed, stating that the trial was at an advanced stage and the discretion to call for a document was vested in the court. The petitioner's argument that all requirements for invoking Section 91 were fulfilled was dismissed, and the petition was deemed devoid of merit and dismissed.
Fact of the Case:
A private complaint was filed under Section 138 of the Negotiable Instrument Act, alleging dishonor of a post-dated cheque given as security for a loan. The petitioner sought to call a sale deed as evidence, which was rejected by the trial court. The petitioner appealed under Section 482 of CrPC.
Finding of the Court:
The court found that the trial was at an advanced stage and that the discretion to call for a document was vested in the court. It held that the rejection of the petitioner's application was judicious and dismissed the petition as devoid of merit.
Issues: The main issue was the rejection of the petitioner's application under Section 91 of CrPC for calling a sale deed as evidence, and the subsequent appeal under Section 482 of CrPC.
Ratio Decidendi: The court's decision was based on the interpretation of Section 91 of CrPC, which vests the discretion to call for a document in the court. It emphasized that the trial being at an advanced stage was a relevant factor in considering the application.
Final Decision: The petition filed by the petitioner under Section 482 of CrPC was deemed devoid of merit and dismissed, along with the dismissal of IA No. 1438/2018.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, against the order dated 26.9.2017 passed by First Additional Sessions Judge, Sheopur, whereby the order dated 9.1.2017 passed by learned trial Court has been confirmed and application filed under Section 91 of CrPC preferred by the petitioner has been rejected.
2. The facts in short are that a private complaint was preferred under Section 138 of Negotiable Instrument Act by the respondent, wherein it was pleaded by the respondent that the petitioner had borrowed Rs.8.00 lacs from the respondent on 25.7.2012 and for repayment of such loan a post-dated cheque No. 012559 dated 25.8.2012 was given by the petitioner. The said cheque was presented before the bank and the same was dishonoured, hence the complaint was preferred. The petitioner preferred an application under Section 91 of CrPC for calling sale deed which was executed by Premlata in favour of the respondent. The petitioner has signed as witness in the said sale deed. The cheque in question was given as security for payment of sale consideration, that cheque has been misused. Since the sale deed reflects the fact that cheque was given as security, therefore, the sale deed was required to be called.
3. It is further pleaded that the brother of respondent Neeraj has filed one civil suit against Premlata, which is numbered as 28A/2012 C.S. and is pending before Civil Judge Class-1, Sheopur. The sale deed which was sought to be called has been filed in that civil suit and was duly exhibited. Therefore, the petitioner prayed for calling of said record by filing application under Section 91 of CrPC, which was rejected.
4. It is submitted by learned counsel for the petitioner that the impugned order is manifest illegal, arbitrary and contrary to law, therefore, deserves to be set aside. The trial Court has not looked into the controversy involved in the matter. It is further argued that the merit of the matter is not required to be seen, what is required to be seen is the probability of the offence and nexus of the document sought to be called under Section 91 of CrPC.
5. Learned counsel for the petitioner further submitted that under section 91 of CrPC, at any stage any document may be called. As the sought document was neither in possession of the petitioner nor it can be produced by the petitioner, in such situation refusal to exercise the jurisdiction under Section 91 of CrPC is an error committed by the trial Court. Since all the requirements for the purpose of invoking the provision of Section 91 of CrPC were fulfilled in the application, therefore, rejection of application is bad in law. Hence, prayed to allow the instant petition under Sectioin 482 of CrPC.
6. Per Contra, learned counsel for the respondent has specifically denied the version of the petitioner and has submitted that the prosecution evidence has been concluded before the trial Court. Examination of accused is also complete. Now the case is at advance stage. It is also submitted that as per the version of petitioner, the petitioner was the witness of alleged sale deed and a witness is not required to submit any security for payment of sale consideration. The courts below have rightly rejected the application of the petitioner, therefore, the petition filed by the petitioner deserves to be dismissed.
7. Heard the learned counsel for the parties and perused the material available on record.
8. It is undisputed that the trial is at advance stage. It is true that under Section 91 of CrPC any application may be filed at any stage of hearing but Section 91 of CrPC says, “Whenever any Court or any officer in charge of a police station considers that the production of any document...........”. That means, it is the discretion of the Court if it considers that the production of any document or other thing is necessary or desirable. Meaning thereby such discretion is vested in the Court itself and in the present case the Courts belo
