G.S. Mayawala and Another vs Om Prakash Mittal

V.B. Gupta, J.—Present petition has been filed u/s 482 Cr.P.C. praying that order dated 9th July, 2007, passed by the Magistrate vide which application u/s 91 Cr.P.C. filed by the petitioner No. 1 was dismissed be set aside and respondent be directed to produce the balance sheets and Annexures along with his income tax returns for the assessment years 1997-98, 1998-99 and 1999-2000 and also all ledgers, account books, record etc. for his cross-examination before the trial court.

Brief facts of the case are that respondent filed a complaint case against the petitioners in the year 2000 alleging offence of fabrication of false evidence, extortion, cheating and forgery etc. The petitioners issued a notice dated 27th November, 2000 u/s 138 of the Negotiable Instruments Act for dishonour of the cheque given by the respondent and after receiving the notice, respondent as a counter blast, filed the present complaint case against the petitioner. The entire controversy in the complaint is based upon the accounts. The respondent has made false allegations that Rs. 2 lakhs were paid in cash to the petitioners but no dates were given for the alleged cash payment either in the complaint or the diary page produced by the respondent. Further, it has been alleged in the complaint that the accounts were finally settled on 15th September, 1997. In spite of settlement of the accounts, the petitioners have misused the respondent''s cheque by interpolating and presenting to the bank for encashment but the facts are that such cash payment of Rs. 2 lakhs by respondents was never made and the cheque given by the respondent was rightly deposited by the petitioner for recovery of dues.

During the course of the trial, petitioner filed an application u/s 91 Cr.P.C. for summoning the record, for cross-examination of respondent.

Vide impugned order the Magistrate held that:-

The complainant is at liberty to prove its case by placing documents which he himself thinks fit for the success of his case. If at all at any stage of proceedings any evidence necessary for the decision of the case is not produced the respective parties are bound to suffer. The Court cannot direct any particular documents be produced if the complainant is having no such documents in his possession as submitted by the complainant herein. The question of relevancy or necessity has to be decided at the time of arguments after the trial has been conducted.

It has been contended by learned counsel for the petitioner that, the account books are necessary for the purpose of cross-examination as they will clearly prove that the complaint of the respondent is false and bogus and non production of these documents will mean that the best evidence has been withheld by the respondent and in respect of its contentions, learned counsel for the petitioner has cited decisions of this Court in Ashok Kaushik v. State, 1999 (H) AD (Del) 639 and Pawan Duggal v. State, 2001 (5) AD (Del) 657.

According to the petitioner, the main controversy revolves regarding the cash payment of Rs. 2 lakhs made by the respondent to the present petitioner. As per case of the respondent in the complaint, he had made cash payment amounting to Rs. 2 lakhs to the present petitioner No. 1 for petitioner No. 2, but no receipt was issued by the petitioner No. 2. So, it is for the respondent to prove that he had made this payment of Rs. 2 lakhs in cash to the present petitioner.

Much reliance has been placed by the petitioner on one diary page tiled by the respondent in the trial court. The photocopy of that diary page is at Page No. 70. However, this page does not lead us anywhere. Moreover, this document has been filed by the respondent and the respondent has to prove the authenticity of this document and for that purpose there is no need, for production of any other documents prayed by the petitioner.

u/s 91 Cr. P.C. the Court can consider production of any document from the person in whose possession or power such documents are believed to be, only, if it is necessary or desirable for the purposes of the trial.

Here, in the case in hand, the documents required to be produced from the power and possession of the respondent, are not at all relevant for deciding the controversy between the parties and as such the decision cited by learned counsel for the petitioner is not applicable to the facts of the present case. The present petition, under these circumstances is not maintainable and the same is hereby dismissed.