THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE ORDER PASSED BY THE XXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU DATED 13.11.2018 PASSED ON THE APPLICATION FILED BY THE RESPONDENT UNDER SECTION 91 OF THE CODE OF CRIMINAL PROCEDURE, IN C.C.NO.28360/2017 PENDING ON THE FILE OF THE XXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE R. NATARAJ

ORAL ORDER

The petitioner has challenged the correctness of an order dated 13.11.2018 passed in C.C.No.28360/2017 by XXII Additional Chief Metropolitan Magistrate, Bengaluru, in terms of which an application filed by the respondent under Section 91 of Criminal Procedure Code was allowed.

(i) The petitioner had initiated proceedings to prosecute the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (henceforth referred to as 'N.I.Act' for short). The petitioner, in the private complaint contended that the respondent had represented that he possessed a 50% undivided share in an incomplete residential building constructed on Site No.28, and that he was in need of funds to complete the construction. It was further contended that based on such representation, the petitioner and the respondent entered into a memorandum of understanding in terms of which, the petitioner paid a sum of Rs.50,00,000/- to the respondent and he agreed to repay the said sum of Rs.50,00,000/- after completion and sale of the unfinished residential building. It was also agreed that the respondent would pay one-third of the profits realised from the sale of 50% of the apartments constructed on the said property.

(ii) The petitioner claimed that even after the respondent sold all the apartments constructed, he did not repay the amount as agreed under the memorandum of understanding. It was further contended that the respondent thereafter issued a cheque dated 18.09.2017 for a sum of Rs.27,00,000/- in favour of the petitioner towards part payment of the amount due. The petitioner claimed that the said cheque was dishonored on presentation, with the endorsement 'payment stopped by drawer.' Thereafter, the petitioner initiated prosecution against the respondent for the offence under Section 138 of the N.I. Act.

(iii) When the case was set down for trial, the petitioner was examined as PW.1 and the case was posted for cross- examination. At that stage, the respondent filed an application under Section 91 of the Criminal Procedure Code seeking to summon the following documents:

(i) Pan card of the petitioner;

(ii) Income tax returns of the petitioner, duly certified by the chartered accountant for the assessment years 2014 to 2018 and till date;

(iii) Books of accounts and other documents filed along with the income tax returns, including documents relating to the source of income for the years 2014 to 2018;

(iv) Bank account statements of the petitioner from 01.04.2015 till date;

(v) The memorandum of understanding produced by PW.1 before Hulimavu Police Station in Cr.No.245/ 2017;

(vi) Certified copies of the statements of PW.1 and his friend regarding the alleged memorandum of understanding filed in Cr.No.245/2017 of Hulimavu Police Station.

(iv) The said application was opposed by the petitioner contending that the documents sought to be summoned were neither relevant for the purpose of the case nor necessary for adjudication of the issues involved. It was contended that the respondent had entered into memorandum of understanding with the petitioner, in terms of which, the respondent had agreed to repay a sum of Rs.50,00,000/- and that the cheque in question was issued towards discharge of the said liability. It was therefore contended that there was no necessity to summon the documents sought for by the respondent.

(v) The Trial Court, upon considering the contentions urged by the parties as