Tarun Kumar vs Vithhal
2023 Latest Caselaw 17574 MP

                                                             1
                               IN    THE HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                               ON THE 19 th OF OCTOBER, 2023
                                            MISC. CRIMINAL CASE No. 2936 of 2023

                           BETWEEN:-
                           TARUN KUMAR S/O SUBHASH GOYAL OCCUPATION:
                           BUSINESS MOTIBAG CHOWK, NEAR BANK OF INDIA,
                           SENDHWA DISTRICT BARWANI (MADHYA PRADESH)

                                                                                          .....APPLICANT
                           (BY SHRI SUDARSHAN PANDIT - ADVOCATE)

                           AND
                           VITHHAL S/O BANSHILAL SONI, AGED ABOUT 45
                           YE A R S , OCCUPATION: BUSINESS MOULANA AZAD
                           MARG, SENDHWA DISTRICT BARWANI (MADHYA
                           PRADESH)

                                                                                       .....RESPONDENT
                           (BY SHRI ANOPAM CHOUHAN - ADVOCATE)

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

The present petition is filed u/S.482 Cr.P.C challenging the order dated 2.8.2022 passed by JMFC, Sendhwa, District Barwani in Case No.SCNIA 1056/2016 whereby the application filed by the applicant u/S.91 of Cr.P.C has been rejected.

2. The facts of the case are that the respondent/complainant filed a case against the applicant u/S.138 of Negotiable Instrument Act before JMFC, Sendhwa, district Barwani registered as SCNIA 1056/2016. The complainant has alleged in the pleading that the complainant took a loan for his personal Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 19-10-2023 17:08:56

business needs and from the loan amount complainant gave cash amount to the present petitioner. The petitioner filed an application u/S.91 Cr.P.C seeking production of statement of accounts and income tax return for the year 2014-15 to 2017-18. By the impugned order, the trial court has rejected the said application mainly on the ground that the application was filed after more than five years. The complaint case is pending since 2016 and the case is fixed for complainant's evidence since 8.11.2017. As per the provision of Section 138 of Negotiable Instrument Act, the complainant has to prove that there is a legally recoverable debt payable by the accused to him and the document sought by the petitioner accused is one of such ways where authenticity and veracity of

the claim and counter claim can be tested. In support of his submission he has placed reliance on a judgment passed by the Co-ordinate bench in the case of Shivendra Dhakre Vs. Narendra Sharma 2017(3) JLJ 325 where the application u/s.91 of the accused was allowed.

3. Counsel for respondent submits that though the presumption is in favour of the complainant, but still the burden is on the complainant to prove that there is legally recoverable debt payable by the accused to him. Thus, the documents sought by the petitioner are not required for adjudication of the case. It is further submitted that the evidence has already been completed and the case has been heard finally and the judgment could not be delivered because of the interim order passed by this court.

4. After hearing learned counsel for parties and taking into consideration the provisions of Sec.138 of Negotiable Instrument Act, it emerged that the complainant has to prove that there is legally recoverable debt payable by the accused to him. The complaint case is pending since 2016 and the evidence of the complainant was commenced from 8.11.2017. The applicant filed Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 19-10-2023 17:08:56

application for production of document after more than five years. Apart from that, since the burden is on the complainant to prove that there is legally recoverable debt payable by the accused to him, the rejection of application for summoning document sought by the petitioner would not cause any prejudice to him. The judgment relied by the petitioner would not apply to the facts of the present case.

5. In view of the aforesaid, I do not find any illegality and perversity in the impugned order warranting any interference u/S.482 of Cr.P.C. The petition is accordingly dismissed.

(VIJAY KUMAR SHUKLA) JUDGE VM

Signature Not Verified Signed by: VARGHESE MATHEW Signing time: 19-10-2023 17:08:56