ORDER

1. The petitioner has filed this Misc. Criminal Case under section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) being aggrieved with the order dated 9.3.2021 passed in Criminal Appeal (Regular) No.58/2019 by the Second Additional Judge to the Court of First Additional Sessions Judge, Betul; whereby the learned Additional Sessions Judge has rejected the application filed by the petitioner under section 91 of the Code.

2. According to the petitioner, the complainant has filed a private complaint under section 200 of the Code against the petitioner/accused for the offence punishable under section 138 of Negotiable Instruments Act (hereinafter referred to as “the Act”) contending that there was an agreement to sale of land between the parties and in this regard as an advance payment the petitioner/accused has issued a cheque of Rs.20,00,000/- dated 5.10.2013 of State Bank of India, Raipur in favour of respondent No.1/complainant, which was dishonoured on presentation. In proceeding, petitioner/accused has preferred an application under section 91 of the Code, which was dismissed by the trial Court and after completing the trial petitioner/accused has been convicted for the offence under section 138 of the Act and sentenced simple imprisonment for one year and compensation of Rs.31,74,500/- (including interest of Rs.11,74,500/- and suit cost of Rs.66,000/-) has also been imposed, in default of payment of compensation, to undergo 2 years additional simple imprisonment.

3. The petitioner/accused preferred a criminal appeal under section 374 of the Code and in appeal, the petitioner filed an application under section 91 of the Code (annexure A-3); whereby he prayed to call the income tax return of the complainant. That application was rejected by the appellate Court vide impugned order passed in Criminal Appeal (Regular) No.58/2019.

4. Learned counsel for the petitioner submits that impugned order passed by the learned appellate Court is bad in law as well as in facts. The learned appellate Court erred in rejecting the application only on the ground that the same application was rejected by the learned trial Court. The learned appellate Court erred in not giving the proper emphasis to the contents of application, Annexure A-3, and passed the impugned order, which is not in consonance in the eyes of law. It is also submitted that though he had filed the application under section 91 of the Code before the appellate Court, however, the same ought to have been treated to be filed under section 391 of the Code by the appellate Court and dealt accordingly. It is also submitted that even otherwise under the facts and circumstances of the case, impugned order is liable to be set aside and the application, Annexure A-3, is liable to be allowed.

5. Heard learned counsel for the parties at length and perused the record.

6. The petitioner/accused preferred an application under section 91 of the Code before the trial Court with the prayer that as the complainant has stated that he has given the aforesaid amount to the petitioner/accused, thus, it is necessary to call the income tax return to find out income of complainant. But that application was rejected by the trial Court.

7. In appeal same application under section 91 of the Code was filed by the petitioner/accused before the learned appellate Court and after due consideration, that application was rejected by the appellate Court and appellate Court came to the conclusion that the trial Court has decided the case on merits and trial is over, therefore, complainant cannot be compelled to produce the income tax returns. The learned appellate Court has relied on the judgments of this Court in the cases of Prem Babu Jayant v. Devendra Kumar Chaudhary, 2018 (II) MPWN 44 and Madhusudan Flour Mill Pvt.Ltd.& another v. Sanjay Mane, 2018 (II) MPWN 16; whereby it has been held that in cases under section 138 of Negotiable Instruments Act complainant could not be directed