Bajrang Lal Gupta @APPELLANT@Hash Union of India

This criminal misc. petition under Section 482 Cr.P.C. has been filed on behalf of the petitioner being aggrieved with the order dated 5.11.2016 passed

by the Special Judge, C.B.I. Cases, Jodhpur (for short ‘the trial court’) in Sessions Case No.10/2012 whereby, the trial court has rejected the

application filed by the petitioner under Section 91 Cr.P.C. read with Section 165 of the Indian Evidence Act.

Brief facts of the case are that the petitioner is facing trial before the trial court for the offences punishable under Sections 420, 467, 468, 471, 477-A

IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. The allegation against the petitioner is that when he was

working as a Field Officer at Industrial Area, Sojat City Branch, State Bank of India, he unauthorizedly debited money from various accounts and

credited the same to his own accounts, his wife’s account, joint account with his wife and to other accounts in the name of persons known to him.

It is alleged that the petitioner has unauthorizedly approved enhanced limits in KCC, CC accounts, home loans, terms loans and car loans without

execution/obtaining relevant documents and, as such, acted beyond the powers conferred on him. It is also alleged that the petitioner prepared

vouchers of unauthorized debits and credits and thereafter posted in the system and passed these vouchers and while passing these vouchers, he

withdrew these unauthorized credits from several accounts by cash withdrawal, remitting funds to persons known to him through RTGS/NEFT,

crediting to accounts of persons known to him, crediting to accounts wherein unauthorized debits were raised earlier and crediting accounts of CC

Limit holders of Sojat City Branch.

The prosecution has come up with a case that when the above referred illegal accounts of the petitioner were detected, an enquiry was conducted and

during the course of enquiry, the petitioner accepted making unauthorized transactions in various accounts through his own ID and during the course

of enquiry, he had deposited Rs.70.55 lac in the various accounts. The bank has calculated the total amount misappropriated by the petitioner to the

tune of Rs.1,55,40,800/-.

The petitioner has preferred an application under Section 91 Cr.P.C. read with Section 165 of the Indian Evidence Act before the trial court on

23.9.2014 with a prayer for summoning certain documents enumerated in the application, from the Assistant Manager, State Bank of India, Jaipur.

The trial court after taking into consideration the nature of the documents sought to be summoned by the petitioner and after hearing learned counsel

for the petitioner has rejected the said application vide impugned order while holding that none of the documents is necessary and desirable for the trial

of the case.

Learned counsel for the petitioner has argued that the trial court has grossly erred in rejecting the application filed by the petitioner. It is submitted that

though the C.B.I. has stated that it has not relied upon those documents as the same are not the part of the charge-sheet, but the documents sought to

be summoned by the petitioner are required to be taken on record for the just decision of the case. It is submitted that in the departmental enquiry

against the petitioner, the above mentioned documents have been considered and examined and the true picture will be emerged with the production of

the said documents and the petitioner is in requirement of those documents for the defence purpose during the course of cross-examination of the

prosecution witnesses. It is also argued that the trial court has erred in observing that the documents sought to be summoned are not reliable for the

just decision of the case because there are allegations against the petitioner that he has unauthorizedly debited money from the various accounts and

for the purpose of proving his innocence, the said documents are required.

Learned counsel for the petitioner has also argued that the right to defence is the fundamental right of an accused and if the accused successfully

demonstrates that the documents sought to be summoned are required for the purpose of proving his innocence, the trial court ought to have accepted

his prayer. However, in the present case, though the petitioner has sufficiently demonstrated that the documents sought to be summoned by him are

required for proving his innocence but the trial court without taking into consideration the said aspect of the matter has rejected the application filed by

the petitioner under Section 91 Cr.P.C. read with Section 165 of the Indian Evidence Act simply by observing that those documents are not necessary

and desirable for the purpose of just decision of the case.

Learned counsel for the petitioner has also argued that the petitioner requires those documents for the purpose of summoning the bank officials as

accused in the trial pending against him because during the course of departmental enquiry, those bank employees were also found guilty but the

Investigating Agency i.e. the CBI has deliberately not filed charge-sheet against the said bank employees.

In support of the above contentions, learned counsel for the petitioner has placed reliance on the decisions of the Hon’ble Supreme Court rendered

in the case of Kalyani Baskar (Mrs.) Vs. M.S. Sampoornam (Mrs.), reported in (2007) 2 SCC 258; Natasha Singh Vs. CBI (State), reported in AIR

2013 SC (Criminal) 1564; decisions of this Court in Dhananjay Kumar Singh Vs. State of Rajasthan, reported in 2006 CRI. L. J. 3873; Jasveer Vs.

State of Rajasthan, reported in 2015 (1) Cr.L.R. (Raj.) 526 and decision of Bombay High Court rendered in Kamal Ahmed Mohammed Vakil and

Ors. Vs. State of Maharashtra, reported in 2013 CRL. L.J. 858.

Per contra, learned counsel Dr.Sachin Acharya appearing for the CBI has opposed this criminal misc. petition and argued that the petitioner has

sought to summon as many as 16 documents but the trial court after taking into consideration the relevancy of each and every document has given its

observations in detail that the documents sought to be summoned by the petitioner are not relevant for the just decision of the case. Learned counsel

for the respondent has argued that the majority of the documents sought to be summoned by the petitioner are the CBS system generated reports

containing ID number in respect of certain bills and vouchers. The petitioner has also sought CCTV footage and the Branch Inspector’s remarks

contained in the last inspection report of May, 2011 Branch Sojat City in respect of loan account numbers and the correspondence took place between

the officers of the Bank. It is submitted that all those documents are not at all relevant for the purpose of just decision of the case because the CBI

has not relied upon those documents while filing charge-sheet against the petitioner and the documents filed by the CBI along with the charge-sheet

are sufficient to prove the guilt of the petitioner.

In support of the above contention, learned counsel for the CBI has placed reliance on the decision of the Hon’ble Supreme Court in the case of

Om Prakash Sharma Vs. Central Bureau of Investigation, Delhi, reported in (2000) 5 SCC 679 and State of Orissa Vs. Debendra Nath Padhi,

reported in 2005 (1) SCC 568.

It is contended by learned counsel for the CBI that in the above referred judgments, the Hon’ble Supreme Court has held that the discretion

exercised by the trial court while deciding any application under Section 91 Cr.P.C. is not liable to be lightly interfered with.

Heard learned counsel for the parties and perused the impugned order.

Though, the application under Section 91 Cr.P.C. read with Section 165 of the Indian Evidence Act was filed by the petitioner on 23.9.2014, the

petitioner did not press the said application till the recording of the statement of PW-5 Bhaskar Mani Kala. During the course of pendency of the first

application, the petitioner also moved another application on 6.1.2015 and prayed for summoning of the voucher verification report of different dates

from the Bank. The trial court has taken into consideration the relevancy of each and every document, sought to be summoned, by the petitioner in

detail in the impugned order. It appears that the majority of the documents sought to be summoned by the petitioner are CBS system generated report

containing ID Number of limit maker/checker regarding certain KCC/CC accounts.

The contention of the petitioner before the trial court was that any transaction in KCC/CC accounts of a Bank cannot be done with one ID and can

only be done by two IDs i.e. user name and chequer IDs and, therefore, it is necessary to summon the documents sought such as the CBS system

generated reports regarding several bank accounts, in which, misappropriation of money is alleged to ascertain that who is the other person whose ID

was used apart from the ID of the petitioner. The trial court has taken into consideration the statement of PW-5 Bhaskar Mani Kala and observed

that the said witness has specifically stated that even if two IDs are used in operating the questioned bank accounts, the same are used by the

petitioner only. The trial court has also taken into consideration the statement of PW-5 Bhaskar Mani Kala that the bank accounts can also be

operated by one ID only.

After taking into consideration the above referred piece of evidence, the trial court has opined that there is no necessity and desirability for summoning

the CBS system generated reports in respect of the account numbers mentioned by the petitioner in his application because evidence to this effect is

available on record that ID of the petitioner is used for operating the said bank accounts.

The trial court has also taken into consideration the request of the petitioner for summoning the CBS system generated report containing ID numbers

in respect of branch login and log off, however, the same has been rejected while observing that the allegation against the petitioner is to the effect

that he has enhanced the limits of the loan accounts and thereafter debited the said enhanced amount and credited it in his own bank accounts, his

wife’s account and other accounts and, therefore, there is no desirability to summon the said report.

In respect of the request of the petitioner for summoning the voucher verification reports of certain dates, the trial court has rejected the same while

observing that from the voucher verification report, it cannot be proved that which person has transacted in a bank account and, therefore, there is no

need to summon the said documents also. The trial court has also taken into consideration the fact that the petitioner has requested to summon certain

CBS system generated reports regarding certain bank accounts which are not at all relevant because there is no allegation of misappropriation of any

amount from those bank accounts. The trial court has also rejected the request of the petitioner to summon the CBS system generated report passed

by one D.S. Rathore while observing that the petitioner has failed to demonstrate any desirability and necessity of the said document for the just

decision of the case. The trial court has also held that the CCTV footage of certain dates are also not required to be summoned as they are not related

with misappropriation of money from the bank accounts in question.

From the perusal of the order passed by the trial court, it is clear that the trial court has dealt with the request of the petitioner for summoning the

documents after meticulously examining the necessity and desirability of those documents for the just decision of the case and has opined that none of

those documents is necessary and desirable for the just decision of the case.

It will be useful to refer Section 91 Cr.P.C. at this stage, which reads as 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 sectionmerely 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 bedeemedâ€

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

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

Section 91 empowers the Court to summon any document or thing which it deems ""necessary or desirable"" for the purpose of any inquiry or trial. If an

accused requests the Court for summoning of some documents, he or she has to demonstrate before the Court that summoning of those documents is

necessary or desirable for just decision of the case. It is for the Court to consider any objection raised by the prosecution about the summoning of the

those documents and if the court finds that the applicants have failed to demonstrate the necessity or desirability for summoning of the said documents,

it should reject the application. While deciding the said request made on behalf of the accused, the court must perform the balancing act between the

interest of the individual and of the society.

Having heard learned counsel for the parties and having gone through the impugned order, this Court is of the opinion that the petitioner has failed to

make out a case for interference because he has failed to demonstrate before the trial court that the documents sought to be summoned by him are

necessary and desirable for the trial or for the just decision of the case. The consideration so made by the trial court in rejecting the claim of the

petitioner, could not be held to be either improper or illegal resulting in gross failure of exercise of its jurisdiction.

This court is of the opinion that the trial court must be allowed a large latitude in the matter of exercise of discretion and unless it demonstrates that

the trial court has failed to exercise its jurisdiction or its action resulted in gross failure of justice, the

High Court should not intervene very lightly as a matter of course or for mere asking.

The judgments relied upon by the learned counsel for the petitioner are of little help to the petitioner as the same are distinguished from the facts of the

present case.

The Hon’ble Supreme Court in the case of Kalyani Baskar (supra) has dealt with the powers of a Magistrate of sending document for expert

opinion, hence, it has no relevancy with the present controversy.

So far as judgment of the Hon’ble Supreme Court rendered in Natasha Singh’s case (supra) is concerned, in that case, the Hon’ble

Supreme Court has decided the controversy regarding the powers of the trial court under Section 311 Cr.P.C., hence, this case has also of no

applicability with the present controversy.

In Dhananjay Kumar Singh’s case (supra), this Court has emphasized the requirement of the court to decide the necessity and desirability of any

document for the just decision of the case and has held that if the court finds that the application is moved with ulterior motive for prolonging the trial,

it can reject such application.

The facts of the case of Jasveer (supra) are distinguishable from the facts of the present case because in that case, the petitioner had sought for

certain call details to ascertain the location of the police party and looking to the facts of that case, this Court had directed the trial court to summon

the said call details.

In Kamal Ahmed Mohammed Vakil’s case (supra), the Bombay High Court has observed that the Investigating Agency has suppressed certain

documents collected by it during the course of investigation and in that situation, it has ordered that even those documents have not been relied upon

by the Investigating Agency while filing the charge-sheet, the same can be summoned for the purpose of defence of the accused. However, in the

present case, it is an admitted position that the documents sought to be summoned by the petitioner have not been collected by the CBI during the

course of investigation nor they have been relied upon by it while filing the charge-sheet against the petitioner. It is also to be noticed that the petitioner

has requested to summon the documents from the State Bank of India and has not requested for summoning the same from CBI with a contention

that the documents are in possession of CBI and in such circumstances, the above referred case is of no help to the petitioner.

In view of the above discussion, I do not find any case for interference in this criminal misc. petition.

Resultantly, this criminal misc. petition being bereft of any force is hereby dismissed. Stay petition is also dismissed.