Madhya Pradesh High Court
Omprakash Agrawal vs Abhishek Kaushal on 21 March, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:14180
1 MCRC-55615-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 21st OF MARCH, 2025
MISC. CRIMINAL CASE No. 55615 of 2024
OMPRAKASH AGRAWAL
Versus
ABHISHEK KAUSHAL AND OTHERS
Appearance:
Shri Amit Verma - Advocate for the petitioner.
Shri Vaibhav Dharpure - Advocate for the respondent No.1.
ORDER
This M.Cr.C. under Section 482 of Cr.P.C./Section 528 of
B.N.S.S., 2023 has been filed to challenge the impugned order passed on
16.10.2024 by JMFC, Chhidwara (M.P.) in Criminal Case No.SCNIA
109 of 2019, whereby the application of petitioner filed under Section 91
of Cr.P.C. for production of Income Tax Return (ITR) and balance-sheet
was dismissed.
2 . For decision of this petition, the relevant facts are that, a criminal
complaint under Section 138 of Negotiable Instruments Act was filed by
respondent No.1 against the petitioner and after taking cognizance, the
trial Court initiated the trial. At the stage of complainant evidence, an
application under Section 91 of Cr.P.C. was filed by applicant in which a
request was made to direct the respondent/complainant to produce
Income Tax Returns and balance-sheets for the period of three years
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namely; 2016, 2017 and 2018. The application was opposed by
respondent/complainant and under the impugned order the learned trial
Court dismissed the application.
3. Grounds raised in this petition are that, the trial Court failed to
correctly interpret the provision of Section 91 of Cr.P.C. and also the
factual aspects under which the documents prayed for were required for
the trial. It was ignored that this provision is supposed to be construed
liberally and not restrictively and still the access to documents relevant
and essential for the just adjudication of case were denied. The
application was neither frivolous nor vexatious, but the trial Court
dismissed it superficially. The fundamental right to a fair trial was thus
denied to the petitioner and, therefore, a request has been made to allow
the petition and direct the trial Court to ensure production of requisite
documents.
4. The petition has been opposed by the respondent/complainant
claiming that its the discretion of complainant in what manner he likes to
prove his case and he cannot be dictated terms by accused in this area.
Further, it is submitted that non-payment of Income Tax is a matter
between revenue authority and the assessee. Therefore, citing the
decision of Harihar Mishra Vs. Vinay Kumar Bhavsar , 2021 (3) MPWN
55, Ragini Gupta Vs. Piyush Dutt Sharma in Cr.R. No.5263/2018 and
Dinesh Kumar Gupta Vs. Umesh Kumar Agrawal in M.Cr.C.
No.4188/2017, it is submitted that no interference is warranted in the
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impugned order.
5. Learned counsel for both the parties have been heard and the record
has been perused.
6. The case in hand involves the dishonour of a cheque amounting to
Rs.40,00,000/-. According to petitioner/accused, no cheque to that
amount was issued by him in favour of respondent/complainant. It is
argued that huge financial liability is involved in the case therefore,
petitioner should be given fair trial to raise his defence on the basis of
credible documents.
7. It is submitted that the Income Tax Returns and balance-sheets are
requested to be produced not for the purpose of payment of Income Tax,
but to examine whether the respondent/complainant was having
sufficient funds and was he showing this loan amount in his balance-
sheets and Income Tax Returns.
8. From the impugned order, it is revealed that the trial Court was under
impression that the Income Tax Returns were being called for to examine
whether Income Tax was paid by the respondent/complainant on the
alleged amount and for this reference was made to the citations of
Madhusudan Floor Mills Pvt. Ldt. & others Vs. Sanjay Mane, 2018(2)
MPWN 45 and case of Ragini Gupta (supra) as well as of Dinesh Kumar
Gupta (supra). It is evident that the trial Court least examined the
relevancy of these documents in the light of defence of petitioner.
9. The petitioner has in this case relied upon the decision of co-ordinate
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Bench of this Court in Bharat Bhai Patel Vs. Smt. Radha Agrawal ,
2014(I) MPWN 70, wherein it was observed that where the accused did
not accept the fact of issuing the cheques, Income Tax Returns of the
complainant as well as entries in his accounts books can be summoned.
It was further observed that "it is for the complainant to produce the
document or to file an affidavit that he never submitted any Income Tax
Return or never kept any accounts books of his transaction. If he claims
that the huge amount was lent by him to another person". Similarly, in
the case of Shivendra Dhakre Vs. Shri Narendra Sharma in M.Cr.C.
No.8274/2017, the order passed on 09.08.2017 lays down that if a huge
amount is paid as loan by the complainant, then in all probabilities, in
usual course of business, this debt is to be reflected in the accounts
books, Bank account, ITR etc., and to get clarity in respect of loan
transaction, these documents may be relied. Further, in the light of
judgment of Hon'ble Apex Court in Helios and Matheson Information
Technology Limited and others Vs. Rajeev Sawhney and another , (2012)
1 SCC 699, it is a settled legal position that right to produce or request
for production of any document is available to an accused at the stage of
trial.
10. In the terms of discussion on factual and legal aspects involved in
the case, this petition deserves to be allowed; particularly, in the light of
the fact that certain presumptions can be drawn in favour of complainant
in a case under Negotiable Instruments Act and the right of fair trial
NEUTRAL CITATION NO. 2025:MPHC-JBP:14180
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would become meaningless if the petitioner is denied to substantiate his
defence on the basis of documents even if they belong to complainant.
Here petitioner is not directing the respondent/complainant as to how
should he prove his case, and concern involved herein, entirely rests
upon the right of petitioner/accused to defend himself.
11. Accordingly, in the facts and situation of the case, the impugned
order is set aside and the application filed by petitioner under Section 91
of Cr.P.C. is hereby allowed with a direction to the trial Court to ensure
that the Income Tax Returns and the accounts books of
respondent/complainant for the years 2016, 2017 and 2018 are produced
and an opportunity is afforded to the petitioner to confront the
respondent/complainant on these documents.
12. The present M.Cr.C. is accordingly allowed.
(ANURADHA SHUKLA)
JUDGE
sjk
