Ramesh Fulchand Baheti vs Sandesh Kamalkishorji Randad And ...
2017 Latest Caselaw 2887 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                   NAGPUR BENCH : NAGPUR


                    CRIMINAL WRIT PETITION  NO.918 OF  2016


Ramesh Fulchand Baheti, 
aged about 67 years, occupation :
business, r/o c/o Baheti Brothers, 
Tilak Road, Akola, Taluq and 
District Akola.                                            ...            Petitioner 

               -   Versus -

1)      Sandesh Kamalkishorji Randad,
        aged about 45 years, occupation :
        business, r/o Kama Plots, Akola,
        Taluq and District Akola. 

2)      M/s. Baheti Automobiles,
        a registered partnership firm,

3)      Kamalkishore s/o Fulchand Baheti,
        aged about 70 years, occupation :
        business, 

4)      Sandeep s/o Kamalkishore Baheti,
        aged about 48 years, occupation :
        business, 

        All 2 to 4 r/o In front of Shivaji
        Park, Akola, Taluq and District :
        Akola.                                             ...            Respondents


                                   -----------------
Shri  P.K. Mohta, Advocate for petitioner. 
Shri M.G. Sarda, Advocate for respondent no.1. 
Respondent nos. 2 to 4 served.
                                   ----------------




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                                          CORAM :   P.N. DESHMUKH, J.

DATED : JUNE 7, 2017

ORAL JUDGMENT :

Rule. Rule is made returnable forthwith. Heard finally by

consent of Shri Mohta, learned Counsel for petitioner, and Shri Sarda,

learned Counsel for respondent no.1.

2) Challenge in this petition is to order dated 14/11/2016 passed

below Exh. 57 in Summary Criminal Case No.786/2011 by learned 7 th

Judicial Magistrate, First Class, Akola whereby application filed by

respondent no.1/original complainant to produce documents under

Section 91 of Code of Criminal Procedure came to be allowed. Petitioner

is original accused no.3 in the proceedings initiated by respondent

no.1/original complainant under the provisions of Negotiable Instruments

Act. In the said proceedings, learned trial Court has allowed the

application filed by respondent no.1/complainant under Section 91 of

Code of Criminal Procedure, thereby directing petitioner to produce on

record partnership deed. It is the specific case of petitioner that no such

direction under Section 91 of Code of Criminal Procedure can be given to

accused and as such, impugned order passed by learned trial Court is

contrary to law.

3) Shri Sarda, learned Counsel for respondent no.1/original

complainant, has submitted that the impugned order is required to be

upheld in view of the fact that same came to be passed after noticing that

there is nothing incriminating against petitioner in the partnership deed,

which is ordered to be produced on record by the impugned order.

4) In the facts as aforesaid, Shri Mohta, learned Counsel for

petitioner, has relied upon the judgment of Hon'ble Apex Court in State

of Gujarat vs. Shyamlal Mohanlal Choksi (AIR 1965 SC 1251) where

in para 33, it is laid down thus :

"33) Keeping the above considerations in mind, let us look at the terms of the Section. It will be noticed that the language is general and prima facie apt to include an accused person. But, there are indications that the Legislature did not intend to include an accused person. The words 'attend and produce' are rather inept to cover the case of an accused person. It would be an odd procedure for a Court to issue a summons to an accused person present in Court `to attend and produce' a document. It would be still more odd for a Police Officer to issue a written order to an accused person in his custody to 'attend and produce' a document."

5) In view of above settled legal position, petition succeeds.

Even otherwise, it is material to note that learned trial Court appears to

have read contents of document, which is ordered to be produced on

record under impugned order. From tenor of the impugned order, it is

found that learned trial Court has held that there is no incriminating

material in the partnership deed ordered to be produced on record. In

that view of the matter, it is thus found that learned trial Court has

considered contents of the document, original of which is not on record.

The petition is, therefore, liable to be allowed on this count also.

6) In the circumstances, criminal writ petition is allowed. Rule is

made absolute in terms of prayer clause (i) of criminal writ petition with

no order as to costs.

JUDGE

khj