apl 162-2013 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION NO. 162 OF 2013
Dinesh S/o Somaji Kale,
Aged about 42 years, Occupation -Retired
R/o Takiyaward, Nahar Road, near
Nirwan Hospital, Bhandara,
Tahsil and District-Bhandara ..... APPLICANT
...V E R S U S...
Prakash S/o Marotrao Kolhe,
Aged about 59 years,Occupation-Business,
R/o Hanuman Mandir Ward, Bhandara,
Tahsil and District-Bhandara. ... RESPONDENT
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Shri N.B.Kalwaghe,Advocate for applicant.
Shri A.V.Muley, Advocate for non-applicant.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 27,2017 ORAL JUDGMENT Rule. Rule is made returnable forthwith. Heard finally by consent of learned counsel for the parties.
2. Heard Shri Nilesh Kalwaghe, learned counsel for applicant and Shri A.V.Muley, learned counsel for respondent. ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 00:51:24 ::: apl 162-2013 2
3. The application has questioned the correctness of the order passed by Learned J.M.F.C.(2nd Court) Bhandara dated 24/1/2013 by which the learned Court below allowed the application below Exh.29 in S.C.C.No.965/2010 and thereby directed the present applicant to produce original kararnama dated 01/02/2009 and samatipatra dated 25/5/2009.
4. Non-applicant is complainant who has initiated proceeding for the offence punishable under Section 138 of the Negotiable Instruments Act against the present applicant. The case is registered as S.C.C.No.965/2010. As per the statement of facts made in the complaint a pakka imla alongwith latrine and bathroom situated at Gajmukha Deostahan trust infront of Mahal Bhandara belongs to and possessed by the complaint. It is further stated in the complaint that Vaishali Kale,the wife of the present applicant on 12/4/2009 agreed to purchase the imla for a consideration of Rs. 9,50,000/- . In pursuance of the said agreement, an amount of RS. 1,50,000/- has been paid by way of earnest money and as per the agreement the present applicant issued a cheque in favour of the complainant for amount of Rs. 3,00,000/- as an installment subject to condition of agreement , ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 00:51:24 ::: apl 162-2013 3 and handed over possession of the property in favour of the present non-applicant. The question that arises before this Court is whether the complainant can force the applicant-accused to produce certain documents in order to prove his case. During the pendency of the proceeding an application (Exh.29) was moved by the complainant that 'application for notice to produce the documents, original agreement dated 01/02/2009' . The said application appears to be filed by the non-applicant when the matter was fixed for evidence. As per the said application complainant sought production of Bhadepatracha Kararnama dated 01/02/2009 executed by accused with Manoharprasad Raghuvirprasad Pande and Mukesh Ishwariprasad Pande in presence of witnesses. The said document is placed on record before this Court in the compilation. It shows that it is a rent agreement executed by Manoharprasad Raghuvirprasad Pande and Mukesh Ishwariprasad Pande in favour of one Matrusmruti Bahuuddeshiya Shikshan Sanstha,Bhandara and said document is signed on its behalf by the present applicant as its secretary.
5. learned counsel for the applicant placed reliance upon the two reported cases of this Court; 1) Manjula Ramlal ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 00:51:24 ::: apl 162-2013 4 Barot..vs..Iswarlal P.Barot and others,2006 Cri.L.J.3779 and Mahendrakumar Kanhyalal Jain..vs..Shri Mahavir Urban Cooperative Credit Society Limited,2014 ALL MR(Cri)190 who urged that the production of documents in possession of the accused, the accused cannot be forced to placed it on record. Those two reported cases have surveyed the entire law of Section 91 of the Code of Criminal Procedure and I am in agreement with the views expressed by two Hon'ble Judges of this Court on the said point. Further the documents which are sought to be produced on record are not at all reflected to the agreement in question i.e. agreement to sell by which Vaishali Kale agreed to purchase the suit property and in pursuance of that the disputed cheque is issued by present applicant. The complainant has to prove his own case by adducing sufficient evidence. Since the cheque is issued by the present applicant the presumption is always in favour of the complainant. In order to prove the case of the complainant, complainant cannot ask that the accused be forced to place certain documents which according to applicant may be beneficial to prove his case.
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In view of the matter, the application is allowed. The application Exh.29 in SCC No.965/2010 is dismissed.
It is made clear that any observations made in this judgment are prima facie in nature and those should not influence the learned Judge of the Court below while deciding the complaint case on its own merits. Further looking to the fact that the matter is old the learned Magistrate is directed to expedite the hearing and complete the trial within a period of 9 months from the date of receipt of this order.
Rule is made absolute in the above terms with no order as to costs.
JUDGE (kitey) ::: Uploaded on - 30/06/2017 ::: Downloaded on - 01/07/2017 00:51:24 :::