Rajender Verma vs Ashok Malik
2012 Latest Caselaw 3360 Del

*        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

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

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.

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

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.

MAY 18 , 2012 dk