The burden of proof lies with the complainant in a case under Section 138 of Negotiable Instruments Act, and the accused cannot compel the complainant to produce specific financial documents.

ORDER

1. This petition under Section 482 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') has been filed against impugned order dated 03/01/2020 passed by the Sessions Judge, Neemuch (M.P.) in Criminal Revision No.100/2019, thereby affirming the order dated 18/11/2019 passed by Judicial Magistrate First Class, Neemuch (M.P.) in Criminal Case No.245/2017, whereby an application preferred under Section 91 of Cr.P.C. by the petitioner has been rejected.

2. Brief facts of the case are that the petitioner/accused is facing trial for an offence under Section 138 of Negotiable Instruments Act, 1881 (in short 'N.I.Act') arising out of dishonour of cheque dated 21/06/2016 numbered as 169156 amounting to Rs.5,00,000/-. After examination of the respondent/complainant, the petitioner has filed an application under Section 91 of Cr.P.C. for summoning the Account Books, Income Tax Returns, documents related with various loans obtained from Bank, Car Loan, details of expenses of marriage. After hearing both the parties, the trial Court has dismissed the application. Thereafter, the petitioner had filed a revision before the Sessions Judge, Neemuch, which was also dismissed vide order dated 03/01/2020. Being aggrieved by the aforesaid orders, the petitioner has preferred this petition before this Court.

3. Learned counsel for the petitioner submits that the impugned orders passed by the Courts below are bad in law and against the facts and circumstances of the case. The documents sought to be summoned by the petitioner are necessary documents required in her defence and have drawn nexus to the facts and circumstances of the present case. Presumption under Section 139 of N.I.Act is rebuttable. Documents sought to be summoned are directly relates to the financial capacity of the complainant, are required to be rebut the presumption that cheque was issued against a legally recoverable debt, therefore, it is prayed that application filed by the petitioner be allowed and respondent be directed to produce the Income Tax Returns, Account Books and details of other loan transactions.

4 . On the other hand, learned counsel for the respondent vehemently opposed the prayer by supporting the impugned orders passed by the Courts below and submitted that these documents are not necessary for proper adjudication of the matter as the documents are not relevant for this case.

5. Both the parties are heard at length and perused the various documents filed by them.

6. On perusal of the record, it is apparent that case is pending for the evidence of the respondent/complainant. Learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Ajay Kumar Bharadwaj Vs. Anand Vijan reported in 2004 (II) MPWN 131. There is a presumption under Section 139 of N.I.Act in favour of the non-applicant, therefore, to rebut such presumption, these documents are relevant. For this purpose, he also placed reliance on the judgment delivered by the apex Court in the case of K. Subramani Vs. K. Damodara Naidu reported in (2015) 1 SCC 99 and Kumar Exports Vs. Sharma Carpets reported in (2009) 2 SCC 513.

7. Co-ordinate Bench of this Court in the case of Mohammad Saleem Vs. Vikram Singh Rana passed in M.Cr.C.No.9921 of 2021 on 29/06/2022 has held as under:-

"The Apex Court in the case of John K. Abraham vs. Simon C Abraham, 2014 (I) MPWN = (2014) 2 SCC 236 has held that 'in order to draw the presumption under Section 139 of the Negotiable Instrument 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, he would like to prove its case.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.' On these