Karnataka High Court
Adhar Credit Souhard Sahakari Niyamit ... vs Prathiba W/O Jaganath Patil on 9 May, 2024
-1-
NC: 2024:KHC-D:6961
CRL.P No. 101381 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
CRIMINAL PETITION NO. 101381 OF 2024 (482)
BETWEEN:
ADHAR CREDIT SOUHARD SAHAKARI NIYAMIT
CHINCHALI, REP. BY ITS CEO
AHAD HUSEN TARADE,
AGE: 34 YEARS, OCC: BUSINESS,
R/O: MANNAT 8TH CROSS,
BHAGYANAGAR, BELAGAVI-590006.
...PETITIONER
(BY SRI.VITTHAL S.TELI, ADVOCATE)
AND:
PRATHIBA W/O. JAGANATH PATIL
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: HALACHAPATTI,
Digitally signed
by
TOTA CHINCHALI, TQ: RAIBAG,
MOHANKUMAR
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
DIST: BELAGAVI-591317.
B SHELAR KARNATAKA
...RESPONDENT
DHARWAD
BENCH
Date:
2024.05.13
11:14:28 +0530
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH ORDER DATED 01.04.2024 IN CC NO.35/2021
PASSED BY THE PRL.CIVIL JUDGE AND JMFC, SANKESHWAR,
BELAGAVI, (FOR OFFENCE U/S 138 OF N.I. ACT 1881).
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
-2-
NC: 2024:KHC-D:6961
CRL.P No. 101381 of 2024
ORDER
Heard Sri.Vitthal S Teli, learned counsel for the
petitioner.
2. Petitioner is questioning the order dated
01.04.2024 in C.C.No.35/2021 passed by the Principal
JMFC, Sankeshwar. In terms of the said impugned order,
the application filed by the accused who is facing trial
under Section 138 of Negotiable Instrument Act is allowed
and the Trial Court invoking Section 91 of Code of Criminal
Procedure has directed the third parties to produce the
bank statement of persons named in the said order.
3. Learned counsel, Sri.Vitthal S Teli appearing for
the petitioner-society would contend that the application
under Section 91 of Code of Criminal Procedure in a
proceeding under Section 138 of Negotiable Instrument
Act is not maintainable as the proceeding is a summary
proceeding contemplated under Section 143 of Negotiable
Instrument Act. He would further submit that unless the
case is converted into a summons case from a summary
NC: 2024:KHC-D:6961
trial, there cannot be any application under Section 91 of
Code of Criminal Procedure. It is his further submission
that the application is premature. In support of his
contention, he would also place reliance on the judgment
of Hon'ble Apex Court in the case of Expeditious Trial of
Cases under Section 138 of Negotiable Instruments Act, In
Re, (2021) 16 SCC 1162.
4. This Court has considered the contentions
raised at the bar.
5. Admittedly, the proceeding is under Section 138
of Negotiable Instrument Act. The complainant is a society
and has tendered its evidence. The witness on behalf of
complainant is cross-examined in part. At this juncture,
the accused filed an application under Section 91 of Code
of Criminal Procedure to summon the bank statements of
persons who according to the accused have received the
amount in question from the petitioner-society. This
application is objected by the petitioner-society and
objection is overruled. The Trial Court has held that the
NC: 2024:KHC-D:6961
documents are necessary for adjudication of the case
considering the defence of the accused. The Trial Court
has also noted that there is burden cast on the defendant
to prove the defence. If the accused have taken a defence
that the amount is not credited to their account and it is
credited to the account of some other persons, the burden
is on the accused to establish the said defence and one of
the ways to establish the said defence is to summon the
records from the bank to substantiate the contention that
the amount is credited to the account of persons named in
the application. The trial Court has rightly allowed the
application.
6. Though Mr.Teli is right in contending that
proceeding under Section 138 is a summary proceeding
and it can be a summons trial provided there is an order of
conversion, it does not mean that Section 91 application
cannot be invoked in a summary trial. A bare perusal of
Section 91 of Code of Criminal Procedure would indicate
that the application can be filed in any Court proceeding
NC: 2024:KHC-D:6961
and the said provision does not carve out any exception to
a summary trial. This being the position, the contention
that the application under Section 91 of Code of Criminal
Procedure is not maintainable in summary trial is rejected.
7. The further contention, assuming that the
application can be filed in a summary trial has to be filed
only after closure of evidence of the defendant is also not
acceptable for the simple reason that the law does not
mandate the accused in a proceeding under Section 138 of
Negotiable Instrument Act to lead evidence. It is open to
the accused to establish the defence either by cross-
examining the plaintiff's witnesses or by adducing
witnesses on his behalf. This being the position, the
contention that the accused has to file an application only
after closure of defence evidence has to be rejected. It is
open to the accused to file an application to summon a
document while cross-examining the complainant provided
the documents are relevant for adjudication of the case.
NC: 2024:KHC-D:6961
8. This Court has also perused the judgment of
Hon'ble Apex Court referred to above. The said judgment
cannot be said to be judgment on the power of the Court
under Section 138 of Negotiable Instrument Act to invoke
Section 91 of Code of Criminal Procedure to summon the
records. Hence, this Court does not find any merit in the
petition. Accordingly, the petition is dismissed.
Sd/-
JUDGE
SH
