1. This petition under section 482 of the Code of Criminal Procedure [in brief “the Code”] has been filed against the order dated 5.3.2016 passed by ASJ, Indore in Criminal Revision No.110/2016, whereby affirmed the order dated 13.1.2016 passed by ACJM, Indore in Criminal Case No.29247/2014, whereby rejected the application under section 91 of the Code.

2. The applicant is facing trial for the offence under section 138 of the Negotiable Instruments Act [in brief “the NI Act”]. After examination of non-applicant/complainant, the applicant has filed an application under section 91 of the Code for summoning the account books; income-tax and commercial tax returns of the non-applicant. Learned ACJM rejected the application. Applicant preferred the revision, which was also rejected. Hence, the applicant has filed this petition.

3. Learned counsel for the applicant submits that non-applicant in his cross-examination admitted that he maintains account books in respect of crackers business and agriculture income and files returns in Commercial Tax Department and Income Tax Department. These documents are relevant to judge the financial capacity of the non-applicant. In view of such admission, Court should have issued directions for producing the same. For this purpose, he placed reliance on the judgment of this Court in the case of Ajay Kumar Bharadwaj v. Anand Vijan [2004(II) MPWN 131]. There is a presumption under section 139 of the NI Act in favour of the non-applicant, therefore, to rebut such presumption, these documents are relevant. For this purpose, he placed reliance on the judgment of Hon'ble apex Court in the case of K.Subramani v. K.Damodara Naidu [2015(1) Crimes 48 (SC)].

4. On the other hand, learned counsel for the non-applicant supports the impugned orders and submits that the non-applicant in his cross-examination deposed that the disputed transaction is not mentioned in his account books and income tax returns, therefore, these documents are not relevant for this case.

5. After hearing learned counsel for the parties, perused the record.

6. In the cross-examination non-applicant admitted that he maintains account books in regard to his crackers business and agriculture income. He also admits that in the income tax returns he has shown the income from business and agriculture and he had filed returns in commercial tax department. Courts below have rejected the application on the ground that the non-applicant has explained in his cross-examination that he has not shown disputed transaction in the income tax and commercial tax returns. The Courts below have not considered that these documents are relevant to establish the financial capacity of the non-applicant at the relevant time.

7. With the aforesaid, I am of the view that the rejection of such application amounts to denial of fair trial. Therefore, the order passed by the Courts below are not justified and are accordingly set-aside. The application is allowed and the non-applicant is directed to produce the account books in regard to his agriculture income and income from crackers business and also produce the income tax and commercial tax returns for the financial year 2013-14.

8. Thus, the petition is allowed as indicated above.

Amit Bhatia for applicant; Harnarayan Giri for non-applicant.