Saiyed Rafiq Ali vs Ashok Bhatnagar

Vijay Bishnoi, J.—This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 16.07.2014 passed by the Additional Sessions Judge No. 3, Jodhpur Metropolitan (hereinafter referred to as ''the revisional court'') in Criminal Revision Petition No. 12/2013, whereby the revision petition filed by the petitioner has been dismissed. The above mentioned revision petition was filed by the petitioner being aggrieved with the order dated 09.10.2012 passed by the Additional Chief Metropolitan Magistrate No. 1, Jodhpur Metropolitan (hereinafter referred to as ''the trial court'') in Criminal Case No. 1033/2012, whereby the application filed by the petitioner under Section 91 Cr.P.C. in the pending proceedings against him under Section 138 of Negotiable Instrument Act has been dismissed.

Brief facts of the case are that the complainant-respondent has initiated the proceedings against the petitioner under Section 138 of Negotiable Instrument Act while alleging that the petitioner borrowed a sum Rs. 1,40,000/- from him and in lieu of payment of the said loan, the petitioner issued two cheques to him. It is alleged that when the said cheques were presented in the bank, the same were not honoured by the bank while mentioning a remark that Account Not Activated. A notice sent by the complainant was duly received by the petitioner, however, the petitioner neither replied to the notice nor made payment.

During the trial, the statements of the complainant and one another prosecution witness have been recorded on 01.07.2009 and 03.08.2009. However, on 15.02.2010, learned counsel for the petitioner had moved an application under Section 91 Cr.P.C. and prayed for summoning a copy of the railway tender No. 184 pertaining to year 2003-2004, the copy of the agreement entered into between the petitioner and the complainant-respondent, and the income tax returns of the complainant-respondent. The prayer of the petitioner for summoning the above mentioned documents was opposed by the complainant-respondent.

The trial court after hearing both the parties has rejected the application filed by the petitioner under Section 91 Cr.P.C. while observing that the documents sought to be summoned by the petitioner are neither necessary nor desirable for the purpose of trial of the case. The trial court has observed that the facts that the complainant was assigned contract by the Railways on what conditions and whether he has mentioned the transaction between the petitioner and him in the income tax returns, are not at all relevant for the purpose of trial under Section 138 of Negotiable Instrument Act pending against the petitioner.

Being aggrieved with the order passed by the trial court, the petitioner has preferred a revision petition before the revisional court, however, the revisional court has affirmed the order passed by the trial court and rejected the revision petition filed by the petitioner on merits as well as on maintainability.

Assailing the validity of the impugned orders, the petitioner has argued that in the complaint as well as in the notice, the complainant-respondent has specifically alleged that he has entered into an agreement with the petitioner and as per the condition of the said agreement he has paid Rs. 1,40,000/- to him in advance. It is contended that since the factum of execution of agreement between the petitioner and the complainant-respondent has been specifically mentioned in the complaint, the said agreement is necessary and desirable for the trial of the case pending against the petitioner. It is also contended that the complainant-respondent in his complaint has specifically averred that he has appointed the petitioner as his agent for the purpose of execution of contract work obtained by him from the Railways and, therefore, it is necessary to look into the conditions of the contract to ascertain whether the complainant-respondent can appoint any agent to execute the work of contract. It is also contended that in his statement recorded before the trial court the complainant has admitted that he files the income tax returns every year and also entering every transaction in those income tax returns and, therefore, the income tax returns of the complainant-respondent are also necessary and desirable for the purpose of trial of the case. It is further contended that in the complaint the petitioner has mentioned that the copy of the agreement executed between the petitioner and the complainant-respondent was annexed along with this complaint but the same is not available on record, therefore, also the agreement executed between petitioner and complainant-respondent is necessary and desirable for the trial of case.

On the strength of the above argument, learned counsel for the petitioner has prayed that the impugned orders passed by the courts below are liable to be set aside and the application filed by the petitioner under Section 91 Cr.P.C. may kindly be allowed and the trial court be directed to summon the documents mentioned in the application.

Heard learned counsel for the petitioner and perused the impugned orders.

It is noticed that in the complaint as well as in the notice the complainant-respondent has specifically alleged that he has paid Rs. 1,40,000/- in advance to the petitioner for the purpose of execution of contract work of railway and the petitioner had issued two cheques to him for repayment of advance amount paid to him, however, when the said cheques were presented before the bank the same were not honoured. It is further alleged that the notice sent by him was duly served upon the petitioner but neither the amount was paid nor any reply was filed by the petitioner.

This Court is of the opinion that when the factum of issuance of cheques in question has not been denied by the petitioner the trial court has rightly held that the documents sought to be summoned such as tender documents, income tax returns and the agreement executed between the petitioner and the complainant-respondent are not necessary and desirable for the purpose of trial of the case. Before the trial court it is not the case of the petitioner that he has never issued any cheques to the complainant-respondent. During the cross-examination of the complainant-respondent and other prosecution witnesses before the trial court no question is asked to the effect that the cheques in question were not issued by the petitioner. The prosecution witnesses have not been cross-examined on the point that the complainant-respondent was competent to enter into any agreement with the petitioner as per the condition of contract.

In view of the above discussions, I do not find any merit in this criminal misc. petition. The same is hereby dismissed.

Stay petition also stands dismissed.