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Karnataka High Court
Adhar Credit Souhard Sahakari Niyamit ... vs Prathiba W/O Jaganath Patil on 9 May, 2024
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NC: 2024:KHC-D:6961
CRL.P No. 101381 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
CRIMINAL PETITION NO. 101381 OF 2024 (482)
BETWEEN:
ADHAR CREDIT SOUHARD SAHAKARI NIYAMIT
CHINCHALI, REP. BY ITS CEO
AHAD HUSEN TARADE,
AGE: 34 YEARS, OCC: BUSINESS,
R/O: MANNAT 8TH CROSS,
BHAGYANAGAR, BELAGAVI-590006.
...PETITIONER
(BY SRI.VITTHAL S.TELI, ADVOCATE)
AND:
PRATHIBA W/O. JAGANATH PATIL
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: HALACHAPATTI,
Digitally signed
by
TOTA CHINCHALI, TQ: RAIBAG,
MOHANKUMAR
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
DIST: BELAGAVI-591317.
B SHELAR KARNATAKA
...RESPONDENT
DHARWAD
BENCH
Date:
2024.05.13
11:14:28 +0530
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH ORDER DATED 01.04.2024 IN CC NO.35/2021
PASSED BY THE PRL.CIVIL JUDGE AND JMFC, SANKESHWAR,
BELAGAVI, (FOR OFFENCE U/S 138 OF N.I. ACT 1881).
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:6961
CRL.P No. 101381 of 2024
ORDER
Heard Sri.Vitthal S Teli, learned counsel for the petitioner.
2. Petitioner is questioning the order dated 01.04.2024 in C.C.No.35/2021 passed by the Principal JMFC, Sankeshwar. In terms of the said impugned order, the application filed by the accused who is facing trial under Section 138 of Negotiable Instrument Act is allowed and the Trial Court invoking Section 91 of Code of Criminal Procedure has directed the third parties to produce the bank statement of persons named in the said order.
3. Learned counsel, Sri.Vitthal S Teli appearing for the petitioner-society would contend that the application under Section 91 of Code of Criminal Procedure in a proceeding under Section 138 of Negotiable Instrument Act is not maintainable as the proceeding is a summary proceeding contemplated under Section 143 of Negotiable Instrument Act. He would further submit that unless the case is converted into a summons case from a summary -3- NC: 2024:KHC-D:6961 CRL.P No. 101381 of 2024 trial, there cannot be any application under Section 91 of Code of Criminal Procedure. It is his further submission that the application is premature. In support of his contention, he would also place reliance on the judgment of Hon'ble Apex Court in the case of Expeditious Trial of Cases under Section 138 of Negotiable Instruments Act, In Re, (2021) 16 SCC 1162.
4. This Court has considered the contentions raised at the bar.
5. Admittedly, the proceeding is under Section 138 of Negotiable Instrument Act. The complainant is a society and has tendered its evidence. The witness on behalf of complainant is cross-examined in part. At this juncture, the accused filed an application under Section 91 of Code of Criminal Procedure to summon the bank statements of persons who according to the accused have received the amount in question from the petitioner-society. This application is objected by the petitioner-society and objection is overruled. The Trial Court has held that the -4- NC: 2024:KHC-D:6961 CRL.P No. 101381 of 2024 documents are necessary for adjudication of the case considering the defence of the accused. The Trial Court has also noted that there is burden cast on the defendant to prove the defence. If the accused have taken a defence that the amount is not credited to their account and it is credited to the account of some other persons, the burden is on the accused to establish the said defence and one of the ways to establish the said defence is to summon the records from the bank to substantiate the contention that the amount is credited to the account of persons named in the application. The trial Court has rightly allowed the application.
6. Though Mr.Teli is right in contending that proceeding under Section 138 is a summary proceeding and it can be a summons trial provided there is an order of conversion, it does not mean that Section 91 application cannot be invoked in a summary trial. A bare perusal of Section 91 of Code of Criminal Procedure would indicate that the application can be filed in any Court proceeding -5- NC: 2024:KHC-D:6961 CRL.P No. 101381 of 2024 and the said provision does not carve out any exception to a summary trial. This being the position, the contention that the application under Section 91 of Code of Criminal Procedure is not maintainable in summary trial is rejected.
7. The further contention, assuming that the application can be filed in a summary trial has to be filed only after closure of evidence of the defendant is also not acceptable for the simple reason that the law does not mandate the accused in a proceeding under Section 138 of Negotiable Instrument Act to lead evidence. It is open to the accused to establish the defence either by cross- examining the plaintiff's witnesses or by adducing witnesses on his behalf. This being the position, the contention that the accused has to file an application only after closure of defence evidence has to be rejected. It is open to the accused to file an application to summon a document while cross-examining the complainant provided the documents are relevant for adjudication of the case. -6-
NC: 2024:KHC-D:6961 CRL.P No. 101381 of 2024
8. This Court has also perused the judgment of Hon'ble Apex Court referred to above. The said judgment cannot be said to be judgment on the power of the Court under Section 138 of Negotiable Instrument Act to invoke Section 91 of Code of Criminal Procedure to summon the records. Hence, this Court does not find any merit in the petition. Accordingly, the petition is dismissed.
Sd/-
JUDGE SH List No.: 1 Sl No.: 42