Madhya Pradesh High Court
Jagdish Wadhwani vs Naveen Talreja on 25 November, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:30167
1 MCRC-5555-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
MISC. CRIMINAL CASE No. 5555 of 2024
JAGDISH WADHWANI AND OTHERS
Versus
NAVEEN TALREJA
Appearance:
Shri Dinesh Kumar Agrawal -learned counsel for the petitioners.
Shri Dilip Thakur, learned counsel and Shri Nakul Khedkar, learned
counsel for the respondent [R-1].
Heard on : 18.11.2025
Pronounced on :25 .11.2025
ORDER
This petition under Section 482 of Code of Criminal Procedure, 1973
(in short 'Cr.P.C.') has been filed against impugned order dated 12.12.2023
passed by Judicial Magistrate First Class Gwalior in Criminal Case
No.1694/2017, whereby an application preferred under Section 91 of Cr.P.C.
r/w 311 of Cr.P.C. and 165 of Evidence Act by the petitioners has been
rejected.
2. Brief facts of the case are that the petitioners/accused is facing trial
for an offence under Section 138 of Negotiable Instruments Act, 1881 (in
short 'N.I.Act') arising out of dishonour of cheque dated 02.06.2017
numbered as 032648 amounting to Rs.10,00,000/-. After examination of the
respondent/complainant, the petitioners have filed an application under
Section 91 of Cr.P.C. to summon the records of the complainant's income
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tax returns for the financial years 01.04.2016 to 31.03.2018. After hearing
both the parties, the trial Court has dismissed the application. Being
aggrieved by the aforesaid order, the petitioners have preferred this petition
before this Court.
3. Learned counsel for the petitioners submits that the impugned order
passed by the Court below is bad in law and against the facts and
circumstances of the case. The documents sought to be summoned by the
petitioners 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
directly relates to the financial capacity of the complainant, are required to
rebut the presumption that cheque was issued against a legally recoverable
debt, therefore, it is prayed that application filed by the petitioners be
allowed and respondent be directed to produce the records of his income tax
returns for the financial years 01.04.2016 to 31.03.2018. Learned counsel for
the petitioners 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.
4. On the other hand, learned counsel for the respondent vehemently
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opposed the prayer by supporting the impugned order passed by the Court
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 filed by them.
6. 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 vs. Devendra
Kumar Chaudhary, 2018 (II) MPWN 44."
7. Co-ordinate Bench of this Court again in the case of Prembabu
Jayant Vs. Devendra Kumar Chaudhary reported in 2018 (2) MPWN 120
and 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.
8. Hon'ble the apex Court in the case of Rohitbhai Jivanlal Patel Vs.
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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.
9. 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 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."
10. It is also noteworthy that in the instant case, there is a dispute with
regard to cheque amount of Rs.10,00,000/-, which was dishonoured and
petitioners 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 does
not file the proof of his source of income or Income Tax Return, then what
would be its effect on the case of the complainant. Co-ordinate Bench of this
Court in the case of Ragini Gupta Vs. Piyush Dutt Sharma in Criminal
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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.
11. In view of the above, this Court is of the considered view that the
Court below has not committed any mistake in dismissing the application of
petitioners preferred by the petitioners 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, this Court does not find any
ground for interference in the impugned order passed by the Court below.
12. Accordingly, the M.Cr.C. preferred under Section 482 of Cr.P.C.
stands dismissed.
Certified copy as per rules
(MILIND RAMESH PHADKE)
JUDGE
ojha
