* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M.C. No. 3649/2010
Date of Decision: 18.05.2012
RAJENDER VERMA .... PETITIONER
Through: Mr. Manorajan, Advocate
Versus
ASHOK MALIK ......RESPONDENT
Through: Mr. S.O. Vashisht, Advocate
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This petition is filed under Section 482 Cr.P.C. assailing the order dated 26th October, 2010 of Metropolitan Magistrate whereby application of the Petitioner under Section 91 read with Section 349 Cr.P.C. was dismissed.
2. The Petitioner is facing prosecution in the complaint under Section 138 of Negotiable Instruments Act(in the short the NI Act) filed against him by the Respondent Ashok Malik. In the said complaint, the Respondent had examined himself as CW-1 in support of his complaint. The complainant evidence having been closed, the statement of the petitioner had also been recorded under Section 313 Cr.P.C. and the case Crl. M.C. No. 3649/2010 Page 1 of 5 was at the stage of defence evidence of the petitioner. An application under Section 91 read with Section 349 Cr.P.C. for summoning some documents and for calling upon the respondent/Complainant to answer some queries.
3. I have heard learned counsel for the petitioner and counsel for the respondent and perused the records.
4. The complaint that was filed against the petitioner was based on the fact that both the cheques of Rs. Nine lacs given by the petitioner as repayment of loan were dishonoured on presentation and that the petitioner failed to pay the cheque amounts despite service of notice as contemplated under Section 138 of the Act.
5. The record that was sought to be summoned from the Complainant under Section 91 Cr. P.C. consisted of copy of identity card issued by his department, copies of income tax returns, copy of the sale deed/power of attorney, agreement to sell the properties purchased by the Complainant through the petitioner/accused, copy of bank transaction loan if any relating to Rs. Nine lacs and copies of letters through which the Complainant might have informed his department about the purchase of the properties. There was no dispute with regard to the cheques in Crl. M.C. No. 3649/2010 Page 2 of 5 question issued by the petitioner to the Complainant/Respondent. In fact the petitioner had also filed a civil suit seeking declaration and cancellation of those cheques and said case is pending in the Court of Addl. District Judge. In the said civil suit an application of interrogatories under Order 11 Rule 2 CPC was filed by the petitioner, wherein a plea was taken by him that the Respondent/Complainant along with three persons threatened him and took two cheques of Rs.7 lacs and 2 lakhs respectively. He alleged that he issued the said two cheques to save himself from threats to his life given by the respondent/complainant and to save marriage of his son. He alleged that in the written statement, in the civil suit a plea was taken by the Respondent/Complainant that he had purchased some property through him and he (petitioner) had signed a sale deed as a witness and that he had lured him to make investment with him and so he gave him Rs. 9 lacs in cash and further that since the deal could not be finalized, the petitioner returned the said amount of Rs. 9 lacs by way to aforesaid two cheques. In the said civil suit also the petitioner through interrogatories sought information as regards all the documents which are sought to be produced by way of instant application under Section 91 Cr. P.C.
Crl. M.C. No. 3649/2010 Page 3 of 5
6. The learned Addl. District Judge vide order dated 9th February, 2009 dismissed the said application of interrogatories reasoning that the same does not appear to be having any close connection with the controversy involved. He observed that the interrogatories were in the nature of fishing enquiry and do not appear to be connected or having any relevance with the matter in question. It was after dismissal of this application that the petitioner filed the application under Section 91 Cr. P.C. before the Court of learned Metropolitan Magistrate.
7. All the documents which are sought to be produced do not seem to be having any relevance with or bearing on the complaint under Section 138 of NI Act. By seeking to produce these documents, the petitioner seem to be trying to wriggle out of the liability arising due to cheques which were admittedly given by him to the Respondent and which on presentation got dishonoured. It is of no relevance if the Complainant had or not informed his department about the said payment to the petitioner or had not shown the same in income tax returns or had not taken any loan from the bank or had not purchased any property/things from the petitioner. The queries which are sought to be made are nothing, but questions which the petitioner has already put to respondent/complainant Crl. M.C. No. 3649/2010 Page 4 of 5 in his cross examination. Section 311 is not meant for the purpose of putting queries or questions to a witness.
8. The first and foremost requirement of Section 91 Cr. P.C. is about the document being necessary or desirable for the purpose of trial of the case under Section 138 of the Act. No roving enquiry can be allowed to be undertaken into the matter by weighing the pros and cons and directing irrelevant material to be produced during the trial. It is not that on the mere asking of a party that the documents can be directed to be produced. As is noted above, Complainant has already been examined and cross- examined and the case was at the fag end of the trial. The learned Metropolitan Magistrate has rightly recorded that none of the documents sought to be produced was relevant or has any bearing on the complaint under Section 138 of the Act pending against the petitioner.
8. I find no infirmity or illegality in the said order. The petition has no merit and is thus dismissed.
M.L. MEHTA, J.
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