Dinesh S/O Somaji Kale vs Prakash S/O Marotrao Kolhe
2017 Latest Caselaw 3660 Bom

 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
 -------------------------------------------------------------------------------------------
 Shri  N.B.Kalwaghe,Advocate for applicant. 
 Shri A.V.Muley, Advocate for non-applicant. 
 -------------------------------------------------------------------------------------------

                               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.

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 ,

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

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.

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)