Gopal Gupta vs Anil Kumar Jain

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. against the order dated 07.11.2012 passed by learned IVth Additional Sessions Judge, Gwalior in Criminal Revision No. 386/2012 whereby prayer of summoning of income tax return of the complainant has been disallowed by the learned trial Court vide order dated 09.08.2012 passed in Criminal Case No. 16039/2010 has been confirmed. The brief facts of the petition are that respondent has filed a criminal complaint alleging that the petitioner borrowed Rs. 14,80,000/- from the respondent and issued a cheque bearing No. 347685 in favour of respondent which was dishonoured. The aforesaid complaint was registered as Criminal Case No. 16039/2010. During the cross examination the petitioner filed an application u/s 91 of Cr.P.C. praying that the income tax return of the respondent may be summoned from him as the complainant/respondent has admitted in his cross examination that he informed to the Income Tax Officer regarding his income and the disputed amount given to the petitioner. A copy of the application was supplied to the respondent. The case was fixed for further cross examination on 17.07.2012. On this date respondent could not present in the trial Court, therefore, the learned trial Court fixed two dates i.e. 27.07.2012 for argument on application and 09.08.2012 for further cross examination of the respondent. On 27.07.2012 the Presiding Officer was on leave, therefore, arguments could not be heard. On next date i.e. 09.08.2012, it came in the knowledge of the petitioner that the application u/s 91 of Cr.P.C., had been rejected without hearing the parties. Therefore, petitioner has preferred revision, which has been rejected holding that it is not maintainable.

It is submitted that the revision petition has been rejected on the technical ground and opportunity of hearing was not given to the petitioner. It is further submitted that the learned trial Court passed the order in a mechanical manner, which is non speaking. The document which was prayed for summoning is in possession of the respondent. Therefore, trial Court ought to have allowed the prayer.

Learned counsel for the respondent has supported the impugned order.

In view of the submission of the learned counsel for the parties, I have perused the record.

To substantiate the contention that the impugned order has been passed by the learned trial Court without affording any opportunity of hearing the order sheets dated 11.06.2012, 17.07.2012 and 27.07.2012 have been filed.

From the perusal of the order sheet dated 11.06.2012, it appears that the application was filed on 11.06.2012 but on that date cross examination of respondent/complainant remain incomplete, therefore, the case was fixed for 17.07.2012 for the reply/arguments of the applicant as well as of remaining cross examination. On 17.07.2012, reply of the application was filed and time was sought for argument, therefore, 27.07.2012 was fixed for the arguments on application and 09.08.2012 has been fixed for remaining cross examination. On 27.07.2012 the Presiding Officer was on leave, therefore, case was fixed for 09.08.2012 for hearing the arguments as well as for the remaining cross examination of respondent/complainant. The order sheet dated 09.08.2012 reveals that the arguments of the parties were heard on the application.

Thus, the submission of the learned counsel for the applicant that no opportunity of hearing was given to the petitioner is not correct.

The next contention of the learned counsel for the petitioner is that the learned trial Court has rejected the application of the petitioner without passing the speaking order.

The impugned order reveals that the prayer of the petitioner has been rejected holding that with regard to income of the respondent/complainant detail cross examination has been done and in view of this it does not appears to be just and legal to ask the respondent/complainant to produce the income tax return. Thus the learned trial Court has assigned cogent reason while rejecting the prayer of the petitioner. Thus, the submission of the learned counsel for the petitioner that the impugned order is a non speaking order is devoid of any merits.

Learned counsel for the petitioner placed reliance on the decision rendered by the Hon''ble Supreme Court in the case of S.K. Singhal Fathechand Singhal Vs. State of M.P., , this case is not applicable in the instant case because the learned trial Court has assigned cogent reason in the order.

It is contended by the learned counsel for the petitioner that in the cross examination, respondent has clearly stated that he can produce the document in the trial Court. The documents are necessary for just and proper decision of the case, therefore, permission ought to have been given. He has placed reliance on the following decisions:-.

i. Map Auto Ltd. Vs. Anil Kumar Jain and Others,

ii. Ajay Kumar Bharadwaj Vs. Anand Vijan, reported in 2004 (II) MPWN 131.

Learned counsel for the respondent submits that in the instant case, complainant is required to prove that the cheque was drawn and the same was not en cashed and thereafter despite notice of demand the amount was not paid to him by the accused. Therefore, income tax return of the respondent not at all relevant.

On perusal of the cross examination of the respondent/complainant it appears that in para-11 he has admitted that he is income tax payee. He would have given the details how he earned the amount of the questioned cheque. Today he cannot give the details. He can tell after going through his income tax return in which he has given the details of the amount of questioned cheque.

From the perusal of the cross examination of para-8 to 15 it appears that detail cross examination with regard to source of money alleged to have been by the respondent/complainant to the petitioner has been done. Therefore there is no necessity to call income tax returns of the respondent/complainant.

In the case of Ajay Kumar Bhardwaj (Supra) the complainant has categorically admitted in his evidence that he has maintained accounts with regard to the supply of milk to the applicant, therefore, it was held that the accounts pertaining to their business transaction was necessary for the just decision of the case but in the instant case the facts are entirely different. Similarly in M/s. Map Auto Ltd. (supra), it was held that the documents relating to the transaction between the parties were in possession of the petitioner, hence the petitioner was directed to file the documents including the MOU bills, account papers and other documents related to the business transaction. The fact of the instant case are distinguishable.

In view of the aforesaid analysis, the impugned order does not appears to be erroneous. Petition is devoid of merits and deserves to be dismissed. Consequently, petition is dismissed. Trial Court is directed to proceed in accordance with law.