Rajasthan High Court - Jodhpur
Subh Enterprises vs M/S Arham Brick Indutries And ... on 17 October, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1661/2019
Subh Enterprises, Through Its Proprietor Aashis Doshi S/o Shri
Parasmal Doshi, Aged About 43 Years, B/c Jain, R/o Flat No. 502,
Fifth Floor, Arihant Aditya Society, Jodhpur.
----Petitioner
Versus
M/s Arham Brick Indutries And Supplier, Through Its Proprietor
Subham Khivsara S/o Shri Dipak Kumar Khivsara, R/o 909, 3Rd
Road, Sardarpura, Jodhpur.
----Respondent
For Petitioner : Mr. Mahipal Rajpurohit
For Respondent : Mr. Mohd. Javed Gauri, P.P.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved On 11/10/2022
Pronounced On 17/10/2022
1. This Criminal Misc. Petition under Section 482 Cr.P.C. has
been preferred claiming with the following reliefs:-
"It is therefore, most humbly and most respectfully prayed
that this Criminal Misc. Petition may kindly be accepted and
allowed, while quashing and setting aside the impugned Order
dated 16.11.2018 passed by the Learned Special Metropolitan
Magistrate (NI Cases) No. 1, Jodhpur Metropolitan in Criminal
Regular Case No. 1547/2016. Similarly, the Order dated
02.03.2019 passed by this Hon'ble Court may also kindly be
considered, as the same was passed on the technical ground
after allowing the application filed by the present petitioner
under Section 91 of the Cr.P.C.
Any other appropriate order or directions which this
Hon'ble Court thinks proper and fit as per the facts and
circumstances of the present case, may also kindly be passed in
favour of present petitioner."
2. Brief facts of the case, as placed before this Court by learned
counsel for the petitioner-Company, are that the petitioner-
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Company, through its proprietor Shri Aashis Doshi, preferred an
application under Section 91 Cr.P.C. which came to be rejected by
the learned Special Metropolitan Magistrate (N.I. Act Cases) No.1,
Jodhpur Metropolitan, vide the impugned order dated 16.11.2018;
against which the petitioner-Company preferred a revision, which
too was dismissed by the learned Additional Sessions Judge No.3,
Jodhpur Metropolitan vide order dated 02.03.2019.
3. Learned counsel for the petitioner submitted that the learned
Courts below have erred in passing the impugned orders.
3.1 It was further submitted that the learned trial court below
erred in arriving at the conclusion that the petitioner had failed to
establish before the court that, as to how the documents sought
to be produced would render any assistance to the petitioner to
defend itself.
3.2 It was also submitted that the learned revisional court also
erred in dismissing the revision petition so preferred by the
petitioner, with the finding that the revision petition was not
maintainable given that the order so assailed by the petitioner,
was an interlocutory order under Section 91 Cr.P.C..
4. Learned counsel for the petitioner further submitted that in
the cases under the Negotiable Instruments Act, 1881, the burden
of proof lies on the complainant in regard to substantiate that the
concerned debt is a legally enforceable debt. Learned counsel also
submitted that more particularly, looking into the narrow scope of
defence, the application so preferred by the petitioner under
Section 91 Cr.P.C. for production of the necessary documents,
ought to have been allowed, to ensure the dispensation of fair and
impartial justice.
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5. On the other hand, learned Public Prosecutor opposed the
submissions made on behalf of the petitioner and submitted that
the learned Courts below have rightly passed the impugned orders
after taking into due consideration the overall facts and
circumstances of the case and the material placed on record.
6. Heard learned counsel for both parties and perused the
record of the case.
7. This Court observes that the learned trial court passed the
impugned order dated 16.11.2018 rejecting the application
preferred by the petitioner under Section 91 Cr.P.C. with the
finding that the petitioner, in his testimony during his cross
examination stated that the parties were engaged in a transaction
of tiles adhesives and chemicals, for which sometimes payments
were made through N.E.F.T. and that while he could not recollect
the exact amounts of money so transferred, he could present the
necessary statement of the same before the Court, if summoned
by the court.
8. This Court further observes that the learned trial court
rightly rejected the application preferred under Section 91 Cr.P.C.
with the finding that the documents so sought to be produced by
the opposite party were within the possession of the applicant-
petitioner, as revealed from his testimony.
9. This Court also observes that the learned revisional court,
while deciding the revision preferred by the petitioner against the
aforesaid order of the learned trial court, has rightly observed that
the revision petition so preferred against an order passed under
Section 91 Cr.P.C., was not maintainable, in view of Section 397(2)
Cr.P.C. as well as in light of the judgment rendered by the Hon'ble
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Apex Court in the case of Sethuraman v. Rajamanickam
(2009) 5 SCC 153.
10. This Court, in light of the aforesaid observations, finds that
the impugned orders as passed by the learned Courts below, do
not suffer from any legal infirmity, so as to warrant any
interference by this Court.
11. Resultantly, the present petition fails, and the same is hereby
dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
Skant/-
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