Akhilesh vs Harikesh And Ors

Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.

The above Writ Petition takes exception to the order dated 16/01/2019 passed by the learned Additional Sessions Judge, City Civil & sessions

Court, Greater Bombay by which order Criminal Revision Application No.320 of 2018 filed by the Petitioner â€" Original Accused came to be

rejected and resultantly the order dated 16/01/2018 passed by the learned Metropolitan Magistrate, 58th Court, Bandra, Mumbai in C.C.

No.1637/SS/2012 allowing the application filed by Respondent No.2 â€" original Complainant under Section 91 of the Criminal Procedure Code came

to be confirmed.

The facts leading to filing of the present Writ Petition can in brief be stated thus :-

The Petitioner has lodged complaint being C R No.191 of 2011 against his uncle Chandrabali B Singh, Harikesh C Singh, who is Respondent No.1

herein, and one Naeem Ansari for the offences under Sections 420, 467, 468, 471 r/w 34 of the Indian Penal Code at Kherwadi Police Station alleging

that after the demise of Petitioner’s father, the aforesaid persons have forged some stamp papers forging his signature and the signature of his

mother and got the electric connection of Reliance Company in their name. They were arrested in the said crime. Later on the brother of Chandrabali

namely Suryamani B Singh was also arrested. During investigation it was revealed that the said Naeem Ansari has no role in the said crime.

However, the police have recorded the statement of said Naeem Ansari in which he has stated that during custody Respondent No.1 herein Harikesh

informed him that he has stolen one signed blank cheque of the Petitioner herein. On such disclosure, second FIR has been lodged by the Petitioner

herein for stealing his signed blank cheque at Kherwadi Police Station vide MECR No.2 of 2013. It is the case of the Petitioner that in order to take

revenge, Respondent No.1 â€" Harikesh, who is his cousin, has presented his blank signed cheque for encashment, however, the said cheque was

dishonoured. Therefore Respondent No.1 filed a complaint under Section 138 of the Negotiable Instruments Act against the Petitioner. It is the

allegation of the Petitioner that the said cheque is stolen and thereafter amount has been mentioned therein, and the said cheque being returned unpaid,

that a false complaint under Section 138 of the Negotiable Instruments Act has been filed against him. Whereas it is the case of Respondent No.1 â€

Complainant that the said cheque has been issued by the Petitioner towards discharging his liability and, on its dishonour he has filed the said

complaint.

It is an undisputed fact that during the course of investigation the said cheque has been taken into charge by the Investigating Officer in the said

MECR No.2 of 2013. Thereafter, it is in the complaint filed Respondent No.1 under Section 138 of the Negotiable Instruments Act against the

Petitioner herein, that Respondent No.1 filed an application under Section 91 of the Criminal Procedure Code in C.C. No.1637/SS/2012 before the

learned Metropolitan Magistrate, 58th Court at Bandra, Mumbai for production of the said cheque.

It is stated by Respondent No.1 in the said application under Section 91 of the Criminal Procedure Code that the said cheque presently is in the

custody of Investigating Officer in Kherwadi MECR No.2 of 2013, and production of the said cheque is necessary and desirable for the purpose of

inquiry/trial of the said CC No.1637/SS/2012. He therefore prayed to issue summons or order to the IO in Kherwadi Police Station MECR No.2/2013

to produce the cheque in question for the purpose of inquiry/trial.

The said application under Section 91 of the Cr.PC. was opposed by the Petitioner herein by filing affidavit in reply. It is stated in the said affidavit

that Respondent No.1 has malafidely lodged the complaint against the Petitioner with an intention to falsely implicate the Petitioner in the crime. It is

stated that Respondent No.1 neither in the complaint nor in any of the application has disclosed that the disputed cheque is in the custody of the IO of

Kherwadi Police Station, and if the present application is allowed, heavy loss and prejudice would be caused to the Petitioner which cannot be

compensated in terms of money. The Petitioner therefore prayed for dismissal of the said application.

The learned Metropolitan Magistrate, 58th Court, Bandra, Mumbai after hearing the learned counsel for the parties and considering the material on

record allowed the application under section 91 of the Cr.PC filed by Respondent No.1 â€" complainant. The learned Metropolitan Magistrate

observed that if the investigating Officer is directed to produce the cheque and bank memo for the purpose of evidence and on verifying the same and

by obtaining photocopy, and returning the same to document to the IO, would not cause prejudice to either of side. Accordingly the learned

Metropolitan Magistrate by order dated 16/01/2018 allowed the said application and directed the IO to produce the aforesaid documents for limited

purpose.

Being aggrieved by the order dated 16/01/2018 passed by the learned Metropolitan Magistrate, the Petitioner has preferred Revision Application

No.320 of 2018 before the learned Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai. The learned Additional Sessions Judge,

on going through the rival submissions of the learned counsel for the parties and the material on record came to a conclusion that the contentions of

the parties required to be proved by way evidence and will be considered at appropriate stage. It is observed by the Additional Sessions Judge that

allowing application for calling documents from the custody of IO would not amount to collecting the evidence for party, and the documents are

material for inquiry of the case under Section 138 of the Negotiable Instruments Act. The learned Additional Sessions Judge did not deem it

appropriate to interfere with the order passed by the learned Metropolitan Magistrate and accordingly dismissed the Revision Application filed by the

Petitioner herein by order dated 16/01/2019. It is the said order dated 16/01/2019 which is taken exception to by way of the above Writ Petition.

Heard the learned counsel for the parties. The learned counsel for the Petitioner submitted that the order directing the IO to produce the disputed

cheque along with bank memo is contrary to the settled principles of law. It is contended that with a view to falsely implicate the Petitioner, that

Respondent No.1 has filed false complaint under Section 138 of the Negotiable Instruments Act. It is also contended that the cheque in question is

stolen and after mentioning the amount therein the same has been presented and there is no liability on the petitioner to honour the said cheque. The

learned counsel for the Petitioner further contended that directing the IO to produce the disputed documents is collecting evidence for Respondent

No.1. He therefore payed that the impugned orders passed by both the Courts below may be quashed and set aside.

Per contra, the learned counsel for Respondent No.1 contended that Respondent No.1 was employed in the rationing shop of mother of the

Petitioner and the cheque in issue has been issued by the Petitioner at the instance of his mother towards salary of 128 months, and on its dishonour

that the complaint has been filed by Respondent No.1. It is contended that the subject cheque and the bank memo are very much relevant for the

purpose of inquiry in the said complaint. The learned counsel for Respondent No.1 submitted that the documents in question are with the investigating

officer which fact is admitted by the IO. He submitted that the orders passed by the Courts below are proper and, needs no interference at the hands

of this Court. He therefore submitted that the Writ Petition may be dismissed.

I have heard the learned counsel for the parties. It is an undisputed fact that the Petitioner has filed two complaints against Respondent No.1 and,

Respondent No.1 filed complaint under Section 138 of the Negotiable instruments Act against the Petitioner. It appears that the complaint under

Section 138 of the Negotiable Instruments Act filed by Respondent No.1 against the Petitioner is at the stage of issuance of process. It is also an

admitted fact that the cheque on the basis of which Respondent No.1 has lodged the complaint is in the custody of Investigating Officer of Kherwadi

Police in another case filed by the Petitioner. It is required to be noted that in the present case, to begin the inquiry in the complaint filed under Section

138 of the Negotiable Instruments Act, the cheque and the bank memo are the necessary and relevant documents. Respondent No.1 therefore filed

the application under Section 91 of Cr. PC for production of the documents which are in custody of IO.

In the context of the facts of the present case, it would be apposite to read and construe the ingredients of Section 91 of the Cr.PC., which for the

sake of ready reference reproduced herein under :-

“91. Summons to produce document or other thing.

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or

desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may

issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him

to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he

causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankers' Books Evidence Act, 1891 (13 of 1891 ) or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.

Section 91 (1) provides that whenever any Court or any officer in charge of a police station considers that the production of any document or other

thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or

officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is

believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. In a pending proceeding,

JMFC can direct production of document for inquiry/trial at any stage. Even the Police Officer can invoke Section 91, if it is necessary for production

of document at any stage.

In the present case, the cheque issued to Respondent No.1 when presented in bank was dishonoured and thereafter Respondent No.1 filed the

complaint against the Petitioner. Therefore the subject cheque and bank memo, on the basis of which the complaint under Section 138 of the

Negotiable Instruments Act has been lodged are necessary and relevant documents for the purpose of inquiry/trial. Admittedly the said documents are

in the custody of the Investigating Officer in another case and, as rightly observed by the Sessions Court, calling the documents from the custody of

Investigating Officer is not collecting the evidence for party.

The complaint filed by Respondent No.1 is at the stage of issuance of process and the cheque, which is directed to be produced is in the custody

of the Investigating Officer in MECR No.2 of 2013 registered at Kherwadi Police Station, is relevant before taking cognizance of the said complaint,

and also yet the investigating in the said crime is not complete. In my view, once that cheque is produced by the Investigating Officer, the same could

be returned to the said Investigating Officer immediately within two weeks after verifying and obtaining the photocopy of the same. In my view, the

learned Metropolitan Magistrate has rightly held that if the investigating officer is directed to produce the cheque, bank memo for the purpose of

evidence, on verifying and obtaining photocopy, the same can be returned to the investigating officer and no prejudice would be caused to either side.

The said order of the learned Metropolitan Magistrate has been confirmed by the learned Additional Sessions Judge in the Revision Application. The

learned Additional Sessions Judge recorded the findings that those are material documents and it is very much necessary to call for both the

documents for trial under Section 138 of the Negotiable Instruments Act.

Reliance sought to be placed by the learned counsel for the Petitioner on the judgment of Andhra Pradesh High Court reported in 1988 Cri.L.J.274

in the case of Dhulipalla Veeraiah Choudary v/s. Kurra Veeraiah and another is misplaced. In the said case the order that has been passed by the

Magistrate invoking the provisions of Section 91 directing the accused to produce the vehicle which was incriminatory in nature was not sustainable.

The facts of the said case and the facts in the present case are different. Before taking cognizance, accused cannot be directed to produce the

documents. In the present case the application under Section 91 of Cr.P.C. for production of documents has been filed by Respondent No.1, who is

not the accused and the said documents are seized during the investigation of another crime and are in the custody of Investigating Officer.

There are concurrent findings recorded by both the Courts below as regards production of the documents. No fault can be found with the findings

recorded by the Courts below. There is no perversity, illegality and infirmity in the orders passed by the Courts below. There is no warrant to interfere

with the concurrent findings recorded by the Courts below. As directed by the learned Metropolitan Magistrate, in case the cheque is already not

produced, the concerned Investigating Officer to produce the subject cheque and bank memos before the concerned Metropolitan Magistrate who, on

verifying the same and obtaining photocopy of the same, return the said cheque and bank memo to the concerned Investigating Officer within two

weeks from its production. The Writ Petition is accordingly dismissed. Rule discharged. It is made clear that the observations made herein before are

confined to the adjudication of the present Petition only.