Gujarat High Court

Jayeshbhai Rohitbhai Vaghela vs State Of Gujarat on 4 February, 2025

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                           R/SCR.A/11447/2024                        JUDGMENT DATED: 04/02/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                          R/SPECIAL CRIMINAL APPLICATION (AGAINST ORDER PASSED BY
                                     SUBORDINATE COURT) NO. 11447 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12566 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12565 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 14053 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12401 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12489 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12491 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12511 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12512 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12625 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12641 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12648 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12649 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12987 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 12992 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 13965 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 14514 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 14768 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 14800 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 14806 of 2024
                                                    With
                               R/SPECIAL CRIMINAL APPLICATION NO. 14808 of 2024

                       FOR APPROVAL AND SIGNATURE:



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                            R/SCR.A/11447/2024                                        JUDGMENT DATED: 04/02/2025

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                       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                       ==========================================================

                                     Approved for Reporting                         Yes            No

                       ==========================================================
                                                 JAYESHBHAI ROHITBHAI VAGHELA
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR ZUBIN BHARDA FOR MR VICKY B MEHTA(5422) for the Applicant(s)
                       No. 1
                       MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 2
                       MR RAHUL K DAVE(3978) for the Respondent(s) No. 2
                       MR PRANAV DHAGAT, APP for the Respondent(s) No. 1
                       ==========================================================

                            CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                            Date : 04/02/2025

                                                       COMMON ORAL JUDGMENT

1. By way of these petitions filed under Articles 226

and 227 of the Constitution of India and under the

provisions of Section 528 of the Bharatiya Nagarik Suraksha

Sanhita, 2023, (`BNSS' for short), the petitioner in each

petition is challenging the order passed by the learned

Additional Chief Judicial Magistrate, Dholka, Ahmedabad

Rural below the application filed under Section 91 of the

Code of Criminal Procedure (`Code' for short), for production

of documents, was rejected.

2. As the facts and the point of law involved in

these petitions are common and the arguments advanced by

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the learned advocates is also common, the petitions are

disposed of by this common judgment, with the consent of

learned advocates for the parties.

3. For the sake of convenience, Special Criminal

Application No.11447 of 2024 is taken as the lead matter

and the observations and findings made in this matter will

be followed in rest of the petitions.

4. The brief facts leading to filing of this petition are

such that the petitioner herein is the original accused and

the respondent no.2 is the original complainant. The

complainant filed the Criminal Case No.1787 of 2023 before

the learned Additional Chief Judicial Magistrate, Dholka,

Ahmedabad (Rural) for the offence under Section 138 of the

Negotiable Instruments Act (`NI Act' for short). The

documentary evidence list was produced by the complainant

and the complainant had also filed examination-in-chief at

Exh.5. The advocate for the accused also cross-examined the

witnesses of the complainant-bank. Thereafter, the application

was preferred under Section 91 of the Code for production of

documents. The said application was rejected. Hence, this

petition.

5. Heard learned advocates for the parties.

5.1 Learned advocate Mr.Bharda for learned advocate

Mr.Mehta for the petitioner has submitted that the loan

agreement specifying the rate of interest is not produced in

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all the complaints. In the cross-examination, the witness of

the complainant bank has admitted that the rate of interest

is decided by the board of directors before passing a

resolution, however, the complainant bank has not produced

on record the resolution specifying the rate of interest and

therefore, the application was filed for production of

documents. He submitted that it is the defence of the

petitioner that more rate of interest is being charged by the

bank beyond the guidelines of Reserve Bank of India and if

the bank is directed to produce on record the resolution

which is in the exclusive custody of the bank, then there

would be no prejudice to the bank. He, therefore, submitted

that these petitions are required to be allowed and the

application filed under Section 91 of the Code is required to

be allowed.

5.2 In support of his submissions, learned advocate for

the petitioner has relied on the following citations:

(1) State of Gujarat V/s Fulesh @ Fulo Amthabhai Desai

reported in 2014(3) GLR 2739.

(2) Maheshchandra K Trivedi V/s State of Gujarat reported in

2000(1) GLR 701.

6. Per contra, learned APP for respondent-state has submitted that the learned trial Court has passed the

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impugned order which is just and proper and no interference

is called for by this Court. He, therefore, submitted that

these petitions be dismissed.

6.1 Learned advocate Mr.Dave for the respondent no.2-

complainant has submitted that the defence has not asked

the witness about the existence of such document; that the

statement of account is produced with the complaint; that the

rate of interest of 14% has been intimated and written in

the documents between the parties; that the Prime Lending

Rate is fixed by the RBI and it is a public document and

therefore the defence cannot compel the production of such

documents; that the complainant filed about 73 such cases

and all those are defended by the same advocate; that

identical applications are filed in each matter and it shows

that this is a delay tactics. He submitted that in all the

cases, the further statement is recorded and no such prayer

has been advanced; that the statutory presumption under

Section 138 of the NI Act is clear and therefore the defence

has to lead rebuttal evidence and cannot compel the

complainant to produce the documents that it may desire. He

submitted that if the petitioner is aggrieved with the order

under challenge, he could have preferred revision application

before the Sessions Court instead of invoking this special

jurisdiction of this Court. He, therefore, submitted that there

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is no illegality or perversity in the impugned order and

therefore these petitions be dismissed.

6.2 In support of his submissions, learned advocate for

the respondent no.2 has relied on the following citations:

(1) Bhikubhai Anakbhai Bayal V/s State of Gujarat reported

in 2007(2) GLR 1380.

(2) State of Orissa V/s Debendra Nath Padhi reported in

2004 CJ(SC) 1285.

(3) Patel Jayantilal Mafatlal V/s State of Gujarat and another

reported in 2008 CJ(Guj) 1590.

(4) Indian Bank Association and Others V/s Union of India

and others reported in 2014 Law Suit (SC) 367.

7. I have heard the learned advocates for the parties

and perused the material produced on record.

8. Section 91 of the Code of Criminal Procedure,

1973 reads as:

"91. Summons to produce document or other thing.--

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to

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the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed-- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."

8.1 The language of Section 91 of the Code would, no

doubt indicate the width of the powers to be unlimited but

the in-built limitation inherent therein takes its colour and

shape from the stage or point of time of its exercise,

commensurately with the nature of proceedings as also the

compulsions of necessity and desirability, to fulfill the task or

achieve the object.

8.2 Further, Section 91 of the Code does not confer

absolute right on accused. Where the document has no

relevance on the case in hand, nor it is desirable for the

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Court to summon, the Court shall reject the application filed

under Section 91. Power of Court under Section 91 of the

Code of Criminal Procedure, 1973 for summoning and

production of documents is one of the absolute discretion. The

only condition for exercise of such discretion is that the

Court must be of the opinion that the production of

document is necessary or desirable. The jurisdiction under

Section 91 of the Code when invoked by accused, the

necessity and desirability would have to be seen by the Court

in the context of the purpose - investigation, inquiry, trial or

other proceedings under the Code.

8.3 Keeping the above in mind, the ingredients which

are required to be satisfied in the application under Section

91 of the Code of Criminal Procedure, 1973 made by any

person/accused are that (i) It is the discretionary powers of

the Court. (ii) There must be satisfaction for the Court to

call for the documents. (iii) The Court should feel that the

said documents are necessary for a just decision. (iv) The

accused cannot compel the Court to summon for the

documents. (v) It is not prerogative of the accused. (vi) The

documents, which are called for, should be with the Court /

Officer-in-charge. (vii) The documents which are called for,

are relevant for the trial. (viii) The documents, which are

called for, are the part of the prosecution. (ix) The

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prosecution has relied on those documents which the accused

are asked for.

8.4 Now, on perusal of the case on hand, when such

application is made under Section 91 of the Code for

production of such document, the applicant has to declare

that such document is in existence or not? The learned trial

Court, in the impugned order, has also considered that the

petitioner has nowhere in the application has stated so. The

learned trial Court has also observed that the transaction in

question is regarding the loan and during the cross-

examination of the complainant, the defence has asked the

question regarding the loan transaction and the policy of

fixing rate of interest by the bank and also asked the

question that such document is not produced on record by

the bank. The answer to the question was that the interest

is charged as per the rules and regulations and as per the

policy and the direction given by the RBI, the board of

directors fix the rate of interest. Whether such document was

in existence or not was not asked at that point of time and

such document is now asked to be produced by the petitioner

by way of application under Section 91 of the Code, which is

not accepted by the learned trial Court and the learned trial

Court has rejected the application on that ground. The

learned trial Court has also found that such application is

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vexatious and is filed with a view to delay the proceeding of

the trial.

8.5 As regards the judgments relied on by the learned

advocate for the petitioner, there cannot be any dispute with

regard to the observations made therein that the concept of

fair trial is required to be seen.

8.6 However, at the same point of time, the judgment

in the case of Indian Bank Association and Others (supra), is

required to be considered as the said proceedings are arising

under Section 138 of the NI Act, wherein all the Courts are

directed to proceed with the matters and expedite the cases

as early as possible and it is observed in paragraphs 20 and

21 as under:

"20. We notice, considering all those aspects, few High Courts of the country have laid down certain procedures for speedy disposal of cases Under Section 138 of the Negotiable Instruments Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. v. Mannalal Khandelwal and The State of Maharashtra through the Office of the Government Pleader MANU/MH/0022/2005 : (2005) CriLJ 1201, Indo International Ltd. and Anr. v. State of Maharashtra and Anr. MANU/MH/ 1581/2005 : (2005) 44 Civil CC (Bom) and Harischandra Biyani v. Stock Holding Corporation of India Ltd. MANU/MH/1462/2005 : (2006) 4 MhLJ 381, the judgment of

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the Calcutta High Court in Magma Leasing Ltd. v. State of West Bengal and Ors. MANU/WB/0120/2007 : (2007) 3 CHN 574 and the judgment of the Delhi High Court in Rajesh Agarwal v. State and Anr. MANU/DE/1838/2010 : (2010) ILR 6 Del 610.

21. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases Under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:

DIRECTIONS:

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint Under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date

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be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice Under Section 251 Code of Criminal Procedure to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused Under Section 145(2) for re-calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-

chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."

8.7 The cases of Bhikubhai Anakbhai Bayal (supra), Patel Jayantilal Mafatlal (supra) and Patel Jayantilal

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Mafatlal (supra) pertain to Section 138 of the NI Act. In the case of Patel Jayantilal Mafatlal (supra), this Court has held

in paragraph nos.9 and 10 as under:

"9. Similarly, in the case of Bhikubhai Anakbhai Bayal vs. State of Gujarat (supra), this Court held that the accused is neither entitled to seek production nor entitled to produce the documents in his possession before the stage of defence is reached. In the said decision, this Court relied upon the decision in the case of State of Orissa (supra). In view of this proposition of law, it is clear that the accused has no right for production of documents till he enters his defence. The language of Section 91 of the Code indicates that whenever any court considers that production of any document is necessary or desirable for the purpose of any investigation or inquiry or trial or other proceedings under the Code, such court may issue summons. Therefore, in order to issue summons for production of documents, the Court is required to see that the document is necessary and desirable for the purpose of trial. Therefore, accused could move the Court for production of documents at the appropriate stage and the Court after considering necessity and desirability could issue summons for production of documents. In the instant case, the respondent-accused sought production of documents for cross examination of the witness. It appears that the respondent-accused did not give reply to the notice. Hence, the ground given for production

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is not convincing. Therefore, the learned Metropolitan Magistrate was justified in rejecting the application, but lower revisional Court committed error in passing the impugned order.

10. In view of the above, as the recording of evidence for the complainant is in progress, the respondent-accused could not claim production of the documents. This Court has not gone into the merits of the application as to whether the documents are necessary or desirable for the purpose of trial as it is likely to cause prejudice to either side, but at this stage, the respondent is not entitled for the relief claimed. Therefore, the impugned order is required to be set aside."

8.8 In the case of Bhikubhai Anakbhai Bayal (supra),

it is held by this Court in paragraph no.7.3 as under:

"7.3 In the very same judgment, the Hon'ble the Apex Court also considered the provisions of Section 91 of the Code along with Sections 227 and 228 of the Code. The Hon'ble the Apex Court observed as under:

Any document or other thing envisaged under Section 91 can be ordered to be produced on finding that the same is "necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code." The first

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and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invokes Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer-in-charge of police station can also direct production thereof. Section 91 does not confer

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any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. Jurisdiction under Section 91 of the Code when invoked by accused the necessity and desirability would have to be seen by the Court in the context of the purpose - investigation, inquiry, trial or other proceedings under the Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry."

9. Considering all these judgments and considering

the findings given by the learned trial Court, it can be said

that the provisions of Section 91 of the Code, powers are

conferred on the learned trial Court which are discretionary

in nature and the Court can direct the authority concerned

like Inspector of police station or any other authority to

produce any document or other things which are necessary or

desirable for the purpose of any investigation, inquiry, trial or

other proceedings in the Court. However, in the case on

hand, the learned trial Court has given reasons for rejecting

the application under Section 91 of the Code as the Court

found that the said documents are not necessary for the trial.