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IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Shivendra Dhakre v. Narendra Sharma
Miscellaneous Criminal Case No. 8274 of 2017 (Gwalior);
against order dated 30.3.2017 passed by
trial Court (JMFC) Gwalior; Decided on 9.8.2017
Held : The complainant has to prove that there is legally recoverable debt payable by the accused to him and the document sought by the petitioner/accused is one of such ways where authenticity and veracity of the claim and counter claim can be tested. 2014(I) MPWN 70 and 2016(III) MPWN 40 relied on. (2005)1 SCC 568, (2012)1 SCC 699 and (2014)2 SCC 236 followed.
(2) Constitution of India -- Art.21 -- object of criminal law -- free and fair trial is sine qua non of under and is main object of criminal law -- denial of fair trial amounts to injustice to accused -- present petitioner must get a chance to question complainant with documents in hand to establish his innocence.
Held : It is well established principle of law that free and fair trial is sine qua non of Article 21 of Constitution of India and is main object of criminal law. Therefore, it should not be hampered in any manner and fair trial must be afforded to every accused. Denial of fair trial amounts to injustice to the accused. On this aspect also, it is apparent that present petitioner must get a chance to question the complainant with the documents in hand for establishing his innocence
(3) Negotiable Instruments Act, 1881 -- Ss.118, 139 and 138 -- presumption in favour of complainant -- documents sought are relevant to adjudge financial capacity of complainant. [Para 11
¼1½ naM izfdz;k lafgrk] 1973 & /kkjk 91 rFkk 482 & lk{; vf/kfu;e] 1872 & /kkjk 165 ijdzkE; fy[kr vf/kfu;e] 1881 & /kkjk 118] 138 rFkk 139 & vf/kfu;e 1881 dh /kkjk 138 ds v/khu izkbosV ifjokn & ifjoknh dk mlds }kjk fd, dFku ds ckjs esa lkeuk djus ds fy, nLrkost vfHkys[k ij pkgrs gq, vkosnu & ;g vfHkfu/kkZfjr djrs gq, [kkfjt fd ,slk mipkj vfHk;qDr@;kph dks vkjksi fojfpr djrs le; miyC/k ugha & vk{ksfir & ,dckj nLrkostksa dks e¡xkus dh vko';drk rFkk okaNuh;rk LFkkfir gks xbZ & rc fopkj.k U;k;ky; dks iw.kZ U;k; djus ds fy, lkf{k;ksa dk lkeuk djus ds fy, nLrkost cqykuk pkfg, & ;g vkKklwpd gS fd ;kph dks vfHk;qDr dh izfrj{kk esa nLrkostksa dks cqykdj lkeuk djus ds fy, vkKk nh tk, & vk{ksfir vkns'k vikLr rFkk lafgrk 1973 dh /kkjk 91 ds v/khu vkosnu Lohdkj & ekeyk fopkj.k U;k;ky; dks ikfj.kkfed dk;Z dk vuqlj.k djus ds fy, izR;kofrZr & ;kfpdk rn~uqlkj fujkd`rA vfHkfu/kkZfjr % ifjoknh dks ;g fl} djuk gS fd vfHk;qDr }kjk mls ns; _.k fof/kd :i ls olwyh ;ksX; gS rFkk ;kph@vfHk;qDr }kjk pkgs x, nLrkost muesa ls ,d gS tgk¡ nkos izfrnkos dh izekf.kdrk rFkk lR;okfnrk dk ijh{k.k gks ldsA 2014 ¼1½ eŒizŒ ohDyh uksV~l 70 rFkk 2016 ¼3½ eŒizŒ ohDyh uksV~l 40 voyafcrA ¼2005½ 1 ,l lh lh 568] ¼2012½ 1 ,l lh lh 699 rFkk ¼2014½ 2 ,l lh lh 236 vuqlfjrA ¼2½ Hkkjr dk lafo/kku & vuqPNsn 21 & vkijkf/kd fof/k dk mn~ns'; & mica/k ds v/khu fu%'kqYd rFkk _tq fopkj.k vfuok;Z gS rFkk vkijkf/kd fof/k dk eq[; mn~ns'; gS & fopkj.k dk izR;k[;ku vfHk;qDr ds lkFk vU;k; dh dksfV esa vkrk gS & bl ;kph dks nLrkost ds vk/kkj ij viuh funksZf"krk LFkkfir djus ds fy, ifjoknh ls iz'u djus dk volj feyuk pkfg,A vfHkfu/kkZfjr % ;g fof/k dk lqLFkkfir fl}kar gS fd Hkkjr ds lafo/kku ds vuqPNsn 21 ds v/khu fu%'kqYd rFkk _tq fopkj.k vfuok;Z gS rFkk vkijkf/kd fof/k dk eq[; mn~ns'; gS blfy, fdlh Hkh rjg blesa ck/kk ugha vkuk pkfg, rFkk izR;sd vfHk;qDr _tq fopkj.k fn;k tkuk pkfg,A _tq fopkj.k dk izR;k[;ku vfHk;qDr ds lkFk vU;k; dh dksfV esa vkrk gS bl n`f"Vdks.k ls Hkh ;g izdV gksrk gS fd bl ;kph dks ifjoknh dks nLrkost ds vk/kkj ij viuh funksZf"krk LFkkfir djus ds fy, iz'u djus dk volj feyuk pkfg,A ¼3½ ijdzkE; fy[kr vf/kfu;e] 1881 & /kkjk 118] 139 rFkk 138 & ifjoknh ds fgr esa mi/kkj.kk & pkgs x, nLrkost ifjoknh dh foRrh; {kerk U;k;fu.khZr djus ds fy, lqlaxr gSA ¼iSjk 11½
1. Present petition has been preferred by the petitioner under section 482 of the Code of Criminal Procedure, 1973, being crestfallen by the order dated 30.3.2017 passed by the trial Court (JMFC, Gwalior) whereby the application preferred by the petitioner as accused under section 91 of CrPC read with section 165 of Indian Evidence Act has been rejected.
2. Precisely stated facts of the case are that respondent/complainant filed a private complaint before JMFC, Gwalior under section 138 of the Negotiable Instruments Act on the basis of allegations that the complainant has granted loan of Rs.86 lacs to the petitioner and in lieu thereof petitioner issued two cheques details of which are mentioned in the petition memo which got dishonoured and therefore, the case has been filed under section 138 of Negotiable Instruments Act. Cognizance has been taken by the trial Court. During cross examination, complainant in para 10 has admitted that he is engaged in occupation of Priesthood and is filing income tax return for last 3 to 4 years through his Chartered Accountant. Further in para 11 of his cross-examination complainant admitted the fact that he granted loan of Rs.86 lacs to the petitioner but the date has not been mentioned in the complaint and also shown his ignorance about mentioning of the loan in his income tax returns. Therefore, petitioner had occasion to file application under section 91 of CrPC in which he sought bank statement of complainant through which he withdrew Rs.86 lacs. Similarly petitioner sought copy of PAN card and address proof of respondent/complainant as well as income tax returns of financial year 2011-12, 2012-13, 2013-14 etc.
3. Respondent opposed the prayer made by the petitioner by filing reply of the said application. In the reply, he admitted the fact regarding submission of income tax returns but he raised the point that the stage on which petitioner has sought those documents are not proper stage, therefore, he prayed for dismissal of the application. Learned Court below considering the rival submissions, dismissed the application preferred by the petitioner, mainly on the ground that petitioner cannot seek document under section 91 of CrPC during cross examination of complainant. Petitioner can avail this remedy only when his evidence would start. Challenging the order of trial Court, petitioner preferred, criminal revision before the revisional Court but the same was not maintainable, therefore, this petition has been preferred by petitioner under section 482 of CrPC.
4. According to learned counsel for the petitioner, trial Court has erred in passing the impugned order and rejecting the submission advanced by the petitioner. According to him, complainant has filed the case for dishonoure of cheque to the tune of Rs.86 lacs, therefore, it is highly improbable that the said amount is not routed through the Bank nor reference of said transaction would find place in income tax returns. Therefore, the document which may establish innocence of petitioner and which have material bearing in the controversy can be brought through application under section 91 of CrPC during the stage of cross examination of complainant. He relied upon the judgment of Hon'ble Apex Court in the matter of State of Orissa v. Debendra Nath Padhi [(2005)1 SCC 568], Helios and Matheson Information Technology Limited and others v. Rajeev Sawhney and another [(2012)1 SCC 699], John K. Abraham v. Simon C. Abraham and another [(2014)2 SCC 236], as well as the judgment of this Court in the matter of Bharat Bhai Patel v. Smt. Radha Agrawal, [2014(I) MPWN 70] and Ashish v. Vaibhav [2016(III) MPWN 40].
5. On the other hand, learned counsel for the respondent opposed the prayer made by petitioner and submits that the trial Court has rightly passed the order because the application under section 91 of CrPC could have been filed only at the stage of evidence of the accused/petitioner and not before that. He prayed for dismissal of pe
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