Baldev Thakur vs State Bank of India

The present petition under Section 482 of Cr.P.C. has been preferred by the petitioner against the order dated 1/12/2015 passed by 4th Additional Sessions Judge in Criminal Revision No. 583/2015 preferred at the instance of petitioner; wehreby, revision has been dismissed and order of trial Court dated 31/10/2015 was affirmed. Trial Court by its impugned order dated 31/10/2015 rejected the application preferred by the petitioner under Section 243 of Cr.P.C.

Precisely stated facts for adjudication of the case are that complainant/respondent-Bank filed a complaint before the JMFC, Gwalior with the allegation that Bank granted overdraft limit of Rs. 8,00,000/- to the petitioner and loan was repayable in monthly installments. It is further alleged that cheque No. 750382 dated 30/3/2008 for Rs. 1,50,000/- was issued by the petitioner in discharge of liability and same was dishounered on 19/6/2008 and petitioner failed to make payment of dishonoured cheque, therefore, written complaint was filed.

It is the submission of petitioner that complainant neither filed any document to prove existence of alleged loan transaction nor filed any account statement of the alleged loan to have been granted to the petitioner. It appears that complaint was filed in year 2008; however, petitioner appeared before the Court in year 2014.

On 28/08/2015, Branch Manager of the complainant-Bank entered into witness box as PW/1 and he admitted certain facts in his evidence and on the basis of said alleged admission, petitioner tried to establish the fact that dishonoured cheque was taken as security; however, another witness of the complainant -Bank who entered the witness box as PW/2 has denied that the dishonoured cheque was taken as security.

After closure of the evidence of complainant side, petitioner entered into defence and has filed his written statement alongwith an application for summoning the Branch Manager of the Indusind Bank,Gwalior with certified copy of the Bank account of the petitioner and also record of issuance of cheque book containing 10 cheques bearing serial number from 750376 to 750385 to submit that cheques were taken in security and utilized later on. Said calling of witness necessitated as per the allegations in view of fact that account statement for the period in between 1/4/2006 to 31/3/2007 was issued to the petitioner by the Indusind Bank was not certified copy as per the Bankers Books Evidence act, 1891 and also under Section 65-B of the Indian Evidence Act, therefore, despite repeated requests, evidence of issuance of cheque book was not made available to the petitioner by the Indusind Bank, Gwalior and it was informed to the petitioner that account statement cannot be made available and no record with regard to issuance of cheque book in year 2006 can be made available. Therefore, an application under Section 243 of Cr.P.C. was preferred but same has been rejected.

Learned counsel for the petitioner while resorting to different provisions of Code of Criminal Procedure namely, Section 252 to 256 and 260 to 265 as well as Sections 139 and 143 of Negotiable Instrument Act submitted that trial Court as well as revisional Court erred in passing the impugned orders. In a summary trial,petitioner has a right of hearing and to adduce evidence, same has not been considered while passing the impugned orders. Counsel for the petitioner relied upon the decision of Hon'ble Apex Court in the matter of T.Nagappa Vs. Y.R.Murlidhar, (2008) 5 SCC 633.

On the other hand, learned counsel for the respondent opposed the prayer made by the petitioner. It is submitted that petitioner can very well produce certified copies of the documents which he wants to call through the Indusind Bank and certified copy as per Section 2 (8) of the Bankers' Books Evidence Act, 1891 means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry etc. Here petitioner could have availed the said benefit by taking the certified copy and producing it. Omission of the same does not entitle the petitioner to seek evidence as per his whims. In fact he is trying to prolong and protract the proceedings. He relied upon the decision of this Court in the matter of Steel Tubes of India vs. Steel Authority of India, 2006 (1) MPLJ 194; wherein, it has been held that complaint under Section 138 of Negotiable Instrument Act is a summary trial as per Section 143 of the Negotiable Instrument Act and this section has a mandatory effect and the provision starts from non obstante clause and therefore, Section 259 of Cr.P.C. regarding warrant trial shall have no application in the case for trying the offence falling under Negotiable Instrument Act. He prayed for dismissal of the petitioner.

Heard learned counsel for the parties at length and perused the record.

From perusal of impugned order passed by the trial Court as well as revisional Court, it appears that both the Courts below have correctly considered the controversy and passed the impugned orders. The Bankers' Books Evidence Act, 1891 and the amendments caused into it as per the Information Technology Act, 2000 by incorporating Section 2A, the concerned bank is bound to give certified copy regarding requisition. Therefore, petitioner could have very well availed the said benefit by applying for certified copy of the documents sought by him and even otherwise, documents as sought by the petitioner are the documents which come in usual and ordinary course of business and therefore, Bank can provide them, if such book is still in the custody of the Bank. This clause also clarifies the controversy meaningfully.

Section 5 of the Bankers' Books Evidence Act, 1891 mandates that no officer of the Bank shall be compelled to produce any bankers' book contents of which can be provided under the Bankers' Books Evidence act, 1891 or to appear as a witness to prove the matters, transactions and accounts therein recorded, unless by order of the court or a Judge made for special cause.

Here no such special cause exists to call such documents at such belated stage. Trial Court has considered all these aspects.

Judgments relied upon by petitioner move in different factual realm, therefore, not applicable. Rather, Apex Court in the case of Sampelly Satyanarayan Rao Vs. Indian Renewable Energy Development Agency Ltd reported in (2016) 10 SCC 458 has held that post dated cheques are accepted mode of payment.

Considering the overall fact situation of the case, no case is made out by the petitioner to interfere in the matter under extraordinary jurisdiction vested under Section 482 of Cr.P.C. Once two courts have taken the controversy in detail and thereafter rejected the application of the petitioner and later on said order is affirmed by the revisional Court, cumulatively no case for interference is made out. Petition sans merits and is hereby dismissed. Since the matter is a long drawn proceedings, therefore, it is expected that trial Court shall proceed further in the matter as expeditiously as possible and try to dispose of the case within four months from the date of receipt of certified copy of this order.

Petition stands dismissed.