Smt. Vinita Mishra vs Naved
2023 Latest Caselaw 1712 MP

                                                            1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                     BEFORE
                                         HON'BLE SHRI JUSTICE ANIL VERMA
                                              ON THE 31 st OF JANUARY, 2023
                                        MISC. CRIMINAL CASE No. 1491 of 2020

                         BETWEEN:-
                         SMT. VINITA MISHRA W/O SHRI VIJAY KUMAR
                         MISHRA, AGED ABOUT 48 YEARS, OCCUPATION:
                         TEACHER, R/O BUNLOW NO.7, PRAGATI SCHOOL,
                         NEEMUCH CANTT., DISTRICT NEEMUCH (MADHYA
                         PRADESH)

                                                                                           .....PETITIONER
                         (BY SHRI ANIKET NAIK - ADVOCATE)

                         AND
                         NAVED S/O DR. ABID ALI, R/O H.NO.31, YOJNA NO.14/3,
                         VIKAS NAGAR, NEEMUCH (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                         (BY SHRI AKASH SHARMA - ADVOCATE)

                               This application coming on for admission this day, the court passed the
                         following:
                                                             ORDER

This petition under Section 482 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') has been filed against impugned order dated 03/01/2020 passed by the Sessions Judge, Neemuch (M.P.) in Criminal Revision No.100/2019, thereby affirming the order dated 18/11/2019 passed by Judicial Magistrate First Class, Neemuch (M.P.) in Criminal Case No.245/2017, whereby an application preferred under Section 91 of Cr.P.C. by the petitioner has been rejected.

2. Brief facts of the case are that the petitioner/accused is facing trial for an offence under Section 138 of Negotiable Instruments Act, 1881 (in short Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/1/2023 11:13:37 AM

'N.I.Act') arising out of dishonour of cheque dated 21/06/2016 numbered as 169156 amounting to Rs.5,00,000/-. After examination of the respondent/complainant, the petitioner has filed an application under Section 91 of Cr.P.C. for summoning the Account Books, Income Tax Returns, documents related with various loans obtained from Bank, Car Loan, details of expenses of marriage. After hearing both the parties, the trial Court has dismissed the application. Thereafter, the petitioner had filed a revision before the Sessions Judge, Neemuch, which was also dismissed vid e order dated 03/01/2020. Being aggrieved by the aforesaid orders, the petitioner has preferred this petition before this Court.

3 . Learned counsel for the petitioner submits that the impugned orders passed by the Courts below are bad in law and against the facts and circumstances of the case. The documents sought to be summoned by the petitioner are necessary documents required in her defence and have drawn nexus to the facts and circumstances of the present case. Presumption under Section 139 of N.I.Act is rebuttable. Documents sought to be summoned are directly relates to the financial capacity of the complainant, are required to be rebut the presumption that cheque was issued against a legally recoverable debt, therefore, it is prayed that application filed by the petitioner be allowed and respondent be directed to produce the Income Tax Returns, Account Books and details of other loan transactions.

4 . On the other hand, learned counsel for the respondent vehemently opposed the prayer by supporting the impugned orders passed by the Courts below and submitted that these documents are not necessary for proper adjudication of the matter as the documents are not relevant for this case.

5. Both the parties are heard at length and perused the various documents Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/1/2023 11:13:37 AM

filed by them.

6 . On perusal of the record, it is apparent that case is pending for the evidence of the respondent/complainant. Learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Ajay Kumar Bharadwaj Vs. Anand Vijan reported in 2004 (II) MPWN 131. There is a presumption under Section 139 of N.I.Act in favour of the non-applicant, therefore, to rebut such presumption, these documents are relevant. For this purpose, he also placed reliance on the judgment delivered by the apex Court in the case of K. Subramani Vs. K. Damodara Naidu reported in (2015) 1 SCC 99 and Kumar Exports Vs. Sharma Carpets reported in (2009) 2 SCC 513.

7. Co-ordinate Bench of this Court in the case of Mohammad Saleem Vs. Vikram Singh Rana passed in M.Cr.C.No.9921 of 2021 on 29/06/2022 has held as under:-

"The Apex Court in the case of John K. Abraham vs. Simon C Abraham, 2014 (I) MPWN = (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, he would like to prove its case.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 Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/1/2023 11:13:37 AM

vs. Devendra Kumar Chaudhary, 2018 (II) MPWN

44."

8 . Co-ordinate Bench of this Court again in the case of Prembabu Jayant Vs. Devendra Kumar Chaudhary reported in 2018 (2) MPWN 120 a n d Madhusudan Flour Mill Pvt. Ltd. & another Vs. Sanjay Mane reported in 2018 (2) MPWN 45 has held that in cases under Section 138 of Negotiable Instruments Act complainant could not be directed to act in specific manner and complainant cannot be compelled to produce the income tax returns and non-payment of income tax is the matter between the revenue and assessee.

9. Hon'ble the apex Court in the case of Rohitbhai Jivanlal Patel Vs. State of Gujarat and Another reported in 2019 (o) Supreme (S.C.) 300 and D.K.Chandel Vs. Walkhard Ltd. reported in 2020 (o) Supreme (S.C.) 146 has laid down that in the case of 138 Negotiable Instruments Act, Account Book/Cash Book etc. are not relevant. So also, the trial Court has rightly observed that in case, the complainant does not file above documents, the case of the complainant will be adversely affected because primarily the burden is on the complainant to prove that he had given money to accused. The complainant cannot be directed how to prove his case.

1 0 . Co-ordinate Bench of this Court in the matter of Dinesh Kumar Gupta Vs. Umesh Kumar Agrwal by order dated 19/07/2017 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 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 his case. The accused cannot direct the complainant to Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/1/2023 11:13:37 AM

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."

11. It is also noteworthy that in the instant case, there is a dispute with regard to cheque amount of Rs.5,00,000/-, which was dishonoured and petitioner sought to call the aforesaid Income Tax Returns of the complainant to determine the source of income of the complainant but it is necessary for this Court to think about the fact that if the complainant shall not file the proof of his source of income or Income Tax Return, then what would be its effects on the case of the complainant. Co-ordinate Bench of this Court in the case of Ragini Gupta Vs. Piyush Dutt Sharma in Criminal Revision No.5263/2018 held that mere non-filing of Income Tax Return, would not automatically dislodge the source of income of the complainant. Non-payment of income tax is a matter between the revenue and assessee and no adverse inference can be drawn in this regard only because of absence of Income Tax Return.

12. In view of the above, this Court is of the considered view that both the Courts below have not committed any mistake in dismissing the application of petitioner preferred under Section 91 of Cr.P.C. In fact, the trial Court has applied correct principles of law, regard being had to the scope of Section 91 of Cr.P.C., while rejecting the application. Hence, I do not find any ground for interference in the impugned orders passed by the Courts below.

1 3 . Accordingly, the M.Cr.C. preferred under Section 482 of Cr.P.C. stands dismissed.

Certified copy as per rules.

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/1/2023 11:13:37 AM

(ANIL VERMA) JUDGE Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 2/1/2023 11:13:37 AM