Raghuvar Dayal vs Jujhar Singh
2022 Latest Caselaw 2982 MP

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                   The High Court Of Madhya Pradesh
                             Bench Gwalior
                          *****************
           SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                         MCRC No. 48872 of 2018

                              Raghuvar Dayal
                                   Vs.
                               Jujhar Singh

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Shri AR Shivhare, counsel for the petitioner- accused.
Shri SK Shrivastava, counsel for the respondent- complainant.
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Reserved on                          : 17/02/2022
Whether approved for reporting       : ....../............
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                                  ORDER

(Passed on 03 /03/2022)

Per Rajeev Kumar Shrivastava, J:-.

Instant petition preferred u/S. 482 of CrPC, is directed against the

order dated 04/10/2018, passed by Judicial Magistrate First Class, Shivpuri in

Criminal Case No.492/2016, by which the application filed by the

petitioner/accused u/S. 91 of CrPC for summoning the documents of

complainant respondent, has been dismissed.

(2) Factual matrix of the case is that respondent complainant filed a

complaint under Section 138 of Negotiable Instruments Act (in brevity '' the

NI Act'') against petitioner-accused before the Court of JMFC, stating therein

that petitioner accused had borrowed a loan amount of Rs.4,60,000/- from

him and in lieu of repayment, petitioner accused issued a cheque bearing

No.000025 in favour of complainant respondent which became dishonoured

by the concerning Bank with an endorsement of ''insufficient funds''. In

support of his claim, the respondent complainant deposed his submission in

the shape of affidavit (Annexure A2 & A3). In reply, the petitioner-accused

filed an supplication u/S. 91 of CrPC before the Court of JMFC, stating

therein that the registration of complaint under the Price Difference Payment

Scheme (Bhavantar Scheme), receipt with regard to sell of food-grains and

statement of the bank account from 2014-2016 may be summoned from the

respondent complainant. After hearing both the parties, the JMFC vide

impugned order dated 04/10/2018, rejected the application filed by petitioner-

accused u/S. 91 of CrPC. Being dissatisfied, petitioner has knocked the doors

of this Court, by filing this petition u/S. 482 of CrPC.

(3) Counsel for the petitioner accused contends that the view taken by the

learned JMFC in rejecting the application is patently erroneous as respondent

complainant in his cross-examination has specifically admitted that the

amount given to petitioner from his account by receiving the same in his

account, which was earlier deposited after selling foodgrains under the

Bhavantar Scheme. The complainant is already in possession of the essential

documents and the same can be produced by him in the pending trial for the

just decision of the case. The documents are necessary to be summoned

before cross-examination of the respondent/complainant. In continuation, it is

submitte3d that the complaint filed by respondent-complainant in regard to

dishonour of cheque is highly improbable because the said amount is not the

actual source of amount of the respondent. It is further contended that the

JMFC in its impugned order observed that the petitioner accused may lead the

evidence at the stage of defence in order to confront the same. In support of

his contention, etitioner has relied upon the orders dated 13/03/2018 and

09/08/2017 passed by the Coordinate Bench of this Court in Prembabu Jain

vs. Devendra Kumar Chaudhary (MCRC 3162 of 2018) and in Shivendra

Dhakre vs. Shri Narendra Sharma (MCRC 8274 of 2017) wherein, the

Coordinate Bench of this Court has remanded the matter back to the Trial

Court for consequential follow up action to summon the documents as

mentioned in the application u/S 91 of CrPC while affording an opportunity to

confront the same with aid and support of documents. It is further contended

that where there is desirability of documents to be summoned, the Court

below ought to have called the same to confront the witnesses. Therefore, it is

prayed that the trial Court in its impugned order has observed that the

petitioner may summon these documents at the stage of defence in order to

confront the same which is contrary and foreign to law. Hence, it is prayed

that the same deserves to be set aside.

(4) Per contra, the petition is opposed by the counsel appearing for

respondent, who submits that the Court below has rightly passed the

impugned order because it is the complainant who has to prove his case and

petitioner cannot direct or compel him to either lead the evidence or submit

proof as per his own choice. Production of he documents may be relevant in

the Civil Court, but may not be so in the criminal case filed u/S. 138 of the NI

Act. This is because of the presumption in favour of the holder of cheque in

question and complainant is not under an obligation to produce the

documents at the behest of petitioner accused. Hence, prayed for dismissal of

this petition. In support of his contention, the respondent has relied upon the

decision of DK Chandel vs. M/s. Wockhardt Ltd. & Another (decided on

20th January, 2020 in Petition(s) for Special Leave to Appeal (Crl) No.(s).1621

of 2018 and prayed for dismissal of this petition. It is further submitted that

the complainant has only to prove the cheque in question which was drawn

and encashed and thereafter, despite notice the amount was not paid to him by

accused. The accused cannot, at the stage of framing of charge or trial, invoke

Sec. 91 of CrPC to seek production of any documents to show his innocence.

To buttress of his contention, the respondent has relied upon the judgment of

Rajeev Soni vs. Indresh Singh reported in 2007(1) MPLJ 571 and decision

of Hon'ble Supreme Court in the case of State of Orissa vs. Debendra Nath

Padhi, reported in (2005) SCC 568.

(5) Heard the learned counsel for the parties and perused the relevant

material including the impugned order.

(6) The Hon'ble Apex Court in the matter of John K. Abraham vs. Simon

C. Abraham, reported in (2014) 2 SCC 236 has observed as under:-

"9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.'' (7) Similarly, the Coordinate Bench of this Court in the matter of Dinesh

Kumar Gupta Vs. Umesh Kumar Agrawal by order dated 19.7.2017 passed

in M.Cr.C.No.4188/2017 has observed as under:-

"Thus, it is clear that in order to draw presumption under

Section 139 of Negotiable Instruments 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."

(8) It is not in dispute that the petitioner has not denied his signature on the

cheque in question. The most important aspect of the matter as to whether

complainant is under an obligation to produce documents at the behest of

petitioner or not. From the aforesaid enunciation of law laid down by Hon'ble

Apex Court, it is crystal clear that the initial burden is on the complainant to

discharge that he had paid the amount to petitioner accused and it cannot be

said that petitioner who is facing trial under Section 138 of the NI Act is

within his right to say that unless and until documents so wanted by him from

respondent complainant are produced, petitioner accused would not cross-

examine respondent- complainant or his witness(s). It is for the respondent to

decide that in what way he would like to prosecute his case. Petitioner-

accused cannot direct or compel respondent complainant to either lead the

evidence or submit proof, as per his own choice or wishes.

(9) Be that as it may, since the trial Court has exercised its discretion and

has not committed any error in rejecting the application filed by the petitioner-

u/S. 91 of CrPC, this Court does not find it to be a fit case warranting

interference u/S. 482 of CrPC. Petition has no substance and is, therefore,

dismissed.

MKB                                                             (Rajeev Kumar Shrivastava)
                                                                             Judge


      Digitally signed by MAHENDRA
      BARIK
      Date: 2022.03.03 17:54:47 +05'30'