[Cites 5, Cited by 0]
Gujarat High Court
K.S. & Co. Through Sakabhai @ Sankabhai ... vs State Of Gujarat on 13 April, 2026
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R/SCR.A/7429/2017 CAV JUDGMENT DATED: 13/04/2026
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Reserved On : 24/03/2026
Pronounced On : 13/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7429 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
✔
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K.S. & CO. THROUGH SAKABHAI @ SANKABHAI PRABHATBHAI DESAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR. MANOJ T DANAK(6264) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
CAV JUDGMENT
1 Aggrieved by the order passed below Application Exh.68
and 80, the petitioner (original complainant) has preferred
the present Special Criminal Application praying for the
following reliefs:
"8. The petitioner therefore prays that:-
(A) YOUR LORDSHIPS be pleased to issue an
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appropriate writ, order or direction quashing and
setting aside the order dated 27.10.2016 passed
below Exh.68 as well as the order dated 29.05.2017
passed below Exh.80 in Criminal Case No.3098 of
2013;
(B) Pending admission, hearing and final disposal
of this petition, YOUR LORDSHPS be pleased to stay
operation, execution and implementation of the order
dated 27.10.2016 passed below Exh.68 as well as the
order dated 29.05.2017 passed below Exh.80 in
Criminal Case No.3098 of 2013;
(C) YOUR LORDSHPS be pleased to grant such
other and further relief(s) in favour the petitioner as
may be deemed fit in the interest of justice."
2 The facts relevant for the present matter so far as
necessary to decide the controversy at hand, being in a
narrow compass, are enumerated as follows:
2.1 It appears that on 26.03.2010, under a loan agreement,
the appellant (original complainant) had advanced a sum of
Rs.2,50,000/- to the respondent No.2 (accused) herein,
purportedly to enlarge the scope of the business of
respondent No.2, consequent to the respondent No.2
having purchased a vehicle (Bus, bearing registration
No.GJ-14-T-211). It appears that some of the installments
under the said loan agreement were paid by respondent
no.2. However, subsequently, the accused defaulted in
payment of the said residual installments. It is alleged that
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the complainant produced a Cheque for the residual
amount including the interest being Cheque No.239784
dated 02.04.2013 for an amount of Rs.2,05,000/-. On
presentation of the said cheque, the said cheque came to
be dishonoured for the reason of 'insufficient funds" and
hence, after following requisite statutory provisions, the
appellant/complainant preferred criminal complaint
No.3098 of 2013.
2.2 In the said Criminal Complaint proceedings, by way of
Exh.16, the complainant had filed affidavit of examination-
in-chief. Subsequently, the cross-examination ensued
thereunder. Thereafter, in view of certain admissions,
application Exh.68 came to be preferred by the learned
advocate for the Respondent No.2(accused), whereunder
the impugned orders calling upon the appellant to produce
his income-tax returns for the year 2010-11,2011-12,
2012-13 came to be passed, thereby disposing the said
application Exhibit 68.
2.3 An application for reviewing the said order below
Application Exh.68 was preferred by the applicant, which
too, came to be rejected by the Court.
3 Learned advocate for the petitioner submitted that as
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such, all the necessary and requisite documents pertaining
to the transaction at hand, namely, the loan agreement
under which the loan was negotiated, the details of the
cheque through which the loan was advanced and
disbursed to the account of the Respondent No.2(accused)
etc. had already been adduced on the record before the
Court. It was submitted that even if in the cross-
examination, it was admitted by the appellant that under a
particular document, the appellant is entitled to charge the
interest on the loan advanced; that such document is with
the custody of the appellant; and that even if it was
admitted that in the accounts and in the income tax
returns of the Appellant, the amounts advanced has been
shown, yet the Trial Court could not have called upon the
applicant to produce income-tax returns for the year 2010-
11, 2011-12, 2012-13. It was submitted that as such the
Respondent No.2(accused) never disputed the existence of
the loan agreement and that in confirmation of the same,
the Respondent No.2 (accused) has even paid certain
installments. That the income-tax returns are not filed by
the complainant, merely in respect of the Respondent No.2
(accused) but for number of other persons and as such the
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amount if, any due towards those persons even if reflected
in the said returns, there is no way to ascertain as to what
is the amount due to the petitioner from the Respondent
No.2 (accused). It was, thus, submitted that as such, the
income-tax returns are wholly irrelevant for the purpose of
adjudication of the complaint under the Negotiable
Instruments Act. It was further submitted that the decision
of this Court in the case of Hiten Parekh Proprietor-Parekh
Enterprises vs. State of Gujarat and another , reported at
Laws (GLH)2009-10-174, as also the decision of the
Bombay High Court in Quazi Mohomed-Hanif vs. Mumtaz
Begum reported at 1990 Cri.L.J 171 (Bom.) support the
stand of the petitioner.
4 As indicated in this Court's order dated 24.03.2026, this
Court had recorded that at the time of hearing of the
present petition, learned advocate for respondent No.2 did
not appear. It appears that even on earlier occasion, i.e. on
26.03.2019, one Ms. Avni Patel, learned advocate had
appeared on behalf of one Mr. Zakirhusen Belim, learned
advocate for respondent No.2 and had asked for time.
Subsequently, it appears that the High Court Legal
Services Committee had fielded learned advocate Mr.
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Manoj T. Danak, who too has not taken pains to remain
present during any part of the day before this Court to
effectively represent respondent no.2 before this Court,
nor, did anyone ask for time for the said respondent No.2.
5 Having heard learned advocate for the appellant, this
Court proceeds to decide the lis involved in the present
matter in terms appearing hereinafter.
6 On perusal of the impugned order, the reasoning of the
Court in so far as providing copies of income-tax return as
aforesaid, deserve to be quoted hereinbelow for the ease of
reference.
"3. I have heard the Ld.Advocate for both the
parties and examined the relevant case papers and
the mandate of Section-91 of the Cr.P.Code which
lays down that the documents can be called for if the
Court thinks it desirable and the section itself being
clear that no party to the proceedings as of right can
ask for invoking the jurisdiction under this provision.
As far as grounds of this applications are concerned,
the same are required to be appreciated in the back
drop of the complaint which is filed under Section
138 of the N.I. Act. Further, no party can be called
upon to give particular evidence unless the same is
permissible in law. Herein this case the part of the
cross examination of the complainant has been
recorded till dated 29/02/2016 and subsequently the
complainant filed certain documents vide list Exh.67
on date 02/07/2016, being the copy of Rojmel as also
the abstract recorded in the name of the accused.
4. The grievances of the accused is that the
same are not as per the admission of the complainant
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during his cross examination and so the application
deserves to be allowed. However, appreciating the
cross examination of the complainant the same
reveals that the complainant states in his cross-
examination that he relies upon the agreement for his
entitlement to charge the interest. Hence, the
document sought for at Sr.No.1 does not need to be
called for.
5. Further, the complainant states that he
maintains the account pertaining to loan advanced to
the accused. The complainant has relied upon the
documents which he produced vide list Exh.67.
Hence, the accused cannot insist for producing the
same again in considered fact that it is the matter of
choice of the complainant as to what evidence he
intends to lead. As far as documents at Sr.No.2 is
concerned. The accused has opportunity to call upon
the witness. However, a copy of the income-tax return
of the particular year as sought for by the accused at
Sr.No.4 if be ordered to be produced, would given an
opportunity to the parties to put their respective
stand in accordance with law and in view of the
foregoing discussion, following order is passed below
this application in the interest of justice.
Order
The present application of the accused at Exh68
stands partly allowed to the extent that the
complainant is ordered to produce the copy of
income-tax return within 30 days from the date of
this order if any filed in this regard for the period as
shown in the application at Sr.No.4 at Exh.68.
No order as to costs."
(Emphasis supplied by underlining)
7 On perusal of the aforesaid reasoning of the impugned
judgement, especially at Paragraph No.5 of the said
impugned order dated 27.10.2016, implies that the Trial
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Court was swayed and had simply reasoned that if the
copy of the income-tax return for the particular years, as
sought for by the accused, is ordered to be produced, it will
give an opportunity to the parties to put their respective
stand in accordance with law. Except for the aforesaid,
there is no reason, as to why the income-tax returns were
ordered to be produced by the trial Court.
8 Now, to the case laws adduced on behalf of the appellant,
it appears that Quazi Mohomed-Hanif (supra), does not
deal with, in any manner, as to the production of income-
tax returns or the necessity producing them before a
Court. In fact, the said case pertains to the right of a
married woman to seek maintenance, post the coming into
effect of the Muslim Women (Protection of Rights on
Divorce) Act, 1986.
9 Reliance placed by the learned advocate for the appellant
on Hiten Parekh (supra) is of some substance. In the said
case, after the conviction of an accused under the
provisions of Section 138 of the Negotiable Instruments
Act, 1881, the appellate Court had overturned the said
conviction, citing that the original complainant had totally
failed in discharging the initial burden of proving that there
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was legally enforceable debt, as the original complainant
(of that case) did not produce any cogent proof such as
books of accounts, accounts notebook, income-tax report,
income-tax return, audit report, audit book etc. The said
finding came to be overturned by this Court, in the said
case of Hiten Parekh (supra), by holding that as
documentary evidences, such as the debit entries, copy of
ledger with details of all financial transactions having
taken place before the Trial Court, therefore, the view that
the complainant, in that case, has miserably failed to
produce cogent proof, more particularly, the documents
such as income tax returns/reports, was held to be
unsustainable.
10 Taking cue of the aforesaid ratio laid down by this Court,
in the present case too, the directions of the trial Court in
directing production of income-tax returns is de hors any
reasoning or logic. As to how the income-tax returns are
relevant for the purposes of deciding the said proceedings
is not borne out from the impugned order. Clearly, the
income tax returns, cannot disclose the right of the
Petitioner to charge interest. Nor can it the same
demonstrate the aggregate outstanding due to the
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Petitioner from the Complainant. However, at this stage
this Court does hold that the direction to produce other
documents, such as the documents pertaining to the
authority of the Petitioner to charge interest etc, or the
documents maintaining the accounts of the Complainant
are indeed germane to the dispute before the Trial Court.
Hence, this Court is inclined to grant the prayer as prayed
for in the present proceedings, more particularly, at prayer
clause 8(A) albite, only so far as it pertains to the quashing
of impugned orders dated 27.10.2016 and 29.05.2017, to
the extent that it directs production of certified copy of
income tax returns.
11 As a result, the order dated 27.10.2016 passed below
Exh.68 as well as the order dated 29.05.2017 passed below
Exh.80 in Criminal Case No.3098 of 2013 are quashed and
set aside to the aforesaid extent. The petition stands
disposed of. The interim relief granted vide order dated
01.07.2019 by this Court stands vacated. Rule is made
absolute accordingly.
(J. L. ODEDRA, J)
SUDHIR
