Anshul Singh vs Smt. Priyanka Singh
2022 Latest Caselaw 8555 MP

                      -( 1 )-    M.Cr.C.No.21579/2022


IN THE HIGH COURT OF MADHYA PRADESH AT
                  GWALIOR
                  BEFORE
    HON'BLE SMT. JUSTICE SUNITA YADAV


  MISCELLANEOUS PETITION No.21579 of 2022
Between:-
ANSHUL         SINGH            S/O
SHAILENDRA SINGH          , AGED
ABOUT 33 YEARS, OCCUPATION:
BUSSINESS D-88 HARISHANKAR
PURAM       LASHKAR     (MADHYA
PRADESH)

                                      .... PETITIONER

(BY SHRI PRASHANT SHARMA - ADVOCATE)

AND

SMT.   PRIYANKA SINGH           W/O
AKHIL PRATAP SINGH , AGED
ABOUT 45 YEARS, OCCUPATION:
BUINESS SAFFIRE HOMES CITY
CENTER (MADHYA PRADESH)
                               -( 2 )-   M.Cr.C.No.21579/2022


                                             ....RESPONDENT

  (BY SHRI VIVEK JAIN - ADVOCATE)


 Reserved on       :     16.06.2022

 Delivered on      :      28.06.2022



      This petition coming on for hearing this day, this Court

passed the following:

                              ORDER

This present petition is filed under Section 482 of Cr.P.C.

against the order dated 26.03.2022 passed by Judicial

Magistrate First Class, Gwalior in case No.1053/2019, whereby

the application preferred by the petitioner under Section 91 of

Cr.P.C. has been dismissed.

Petitioner's case in brief is that a private complaint under

Section 138 of Negotiable Instrument Act was filed by the

respondent/complainant alleging that the petitioner demanded

an amount of Rs.50,00,000/- for the purposes of his business

-( 3 )- M.Cr.C.No.21579/2022

and the said amount was paid by the respondent. It is further

alleged in the complaint that the said amount was paid by the

respondent in the month of November, 2018 and the

petitioner/accused promised to return the amount in the month

of February, 2019. On failure of the petitioner to pay the said

amount, the cheque bearing No.808033 of IndusInd Bank was

paid by the petitioner which was dishonored and therefore, the

complaint was filed. Further story of the petitioner is that

during the course of evidence, an application under Section 91

of Cr.P.C. was filed which was rejected by the impugned order.

Learned counsel for the petitioner has argued that the

impugned order is ex-facie, illegal, arbitrary and contrary to the

settled principle of law. Learned trial Court has not appreciated

the provision of Section 91 of Cr.P.C. properly. He has further

argued that the document proposed to be filed are necessary

and desirable for the disposal of this case and therefore,

rejection of the application is perverse. He has further argued

-( 4 )- M.Cr.C.No.21579/2022

that paramount object behind Section 91 of Cr.P.C. is to ensure

that no cogent material connected to the offence is left

undiscovered and unconsidered in the pursuit of truth during

investigation, enquiry, trial or other proceedings. It is further

argued that the reasons assigned by learned trial Court for

rejecting the application is against the settled principle of law

and therefore, the impugned order should be quashed and the

application be allowed.

On the other hand, learned counsel for the respondent

argued that the impugned order is in accordance with settled

principle of law. In support of his argument, he placed reliance

on the judgment of Madhusudan Floor Mills Pvt. Ltd. &

others Vs. Sanjay Mane, 2018 (II) MPWN 16, Prembabu

Jain Vs. Devendra Kumar Chaudhary, 2018 (II) MPWN 44

and Harihar Mishra Vs. Vinay Kumar Bhavsar, 2021 (III)

MPWN 61.

On perusal of record, it is apparent that the case is

-( 5 )- M.Cr.C.No.21579/2022

pending for evidence of the respondent/complainant and cross-

examination has not begun. The Apex Court in the case of John

K. Abraham Vs. Simon C Abraham, reported in 2014 (I)

MPWN 10 = (2014) 2 SCC 236 has held that "in order to draw

the presumption under Section 139 of the Negotiable

Instrument Act, the complainant is required to discharge his

initial burden. Therefore, it is for the complainant to decide that

in what manner, he would like to prove its case. The accused

cannot direct the complainant to act in a particular manner.

Further, whether the respondent had rightly paid the Income

Tax or not, is a matter which is to be considered by the Income

Tax Department and the respondent can always prove the

availability of required funds by leading evidence." On these

grounds, the Apex Court has found that the trial court did not

commit any illegality in rejecting the application under Section

91 of Cr.P.C. The same view has been followed by this Court in

the case of Prembabu Jain (supra).

-( 6 )- M.Cr.C.No.21579/2022

Considering the facts and circumstances of the case, this

Court is of the considered opinion that the trial Court did not

commit any illegality in rejecting the application filed by the

petitioner under Section 91 of Cr.P.C in the light of the settled

principle as discussed above.

Accordingly, this petition fails and is hereby dismissed.

(SUNITA YADAV) JUDGE bj/-

BARKHA SHARMA 2022.06.2 9 16:59:27 +05'30'