IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.3974 OF 2015 BETWEEN:
C.Shivanna, S/o Chikkalingegowda, Aged about 66 years, R/o Holalu Village, Dudda Hobli, Mandya Taluk, Mandya District – 571 401.
(By Sri.Veeresha K., Advocate for Sri.H.B.Chandrashekar, Advocate) AND:
L.Srinivasa, S/o Lingaiah, Aged about 59 years, R/o Nayakara Beedi, Chamundi Betta, Mysore – 570 028.
(By Sri. Rithish D Naik, Advocate for Sri.T.P.Vivekananda, Advocate) …Petitioner ...Respondent This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 13.05.2015 passed by the Judicial Magistrate First Class, Mandya in C.C.No.184/2011 vide Annexure – A and Consequently dismiss the application filed under Section 91 of Cr.P.C. produced at Annexure – K, allow this Crl.P.
This Criminal petition coming on for admission, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner and the learned counsel for the respondent.
2. Petitioner is aggrieved by the order passed by the Judicial Magistrate First Class, Mandya in CC No.184/2015 dated 13.05.2015, whereby the learned Judicial Magistrate has allowed the application filed by the respondent (accused) under Section 91 of Cr.P.C and directed summons to the Bank Manager, Syndicate Bank, V.V.Mohalla, Mysuru, for production of the requisition forms pertaining to the cheque leaves mentioned in the application.
3. The petitioner herein instituted proceedings under Section 138 of the Negotiable Instruments Act against the respondent / accused for dishonour of the cheque issued by the respondent. The complainant examined himself as PW1 and before commencement of his cross examination, respondent / accused moved the above application contending that the petitioner / complainant has forged the signature of the respondent on various other requisition forms and submitted the same to the bank. In the application, he detailed eight such requisition forms and sought summons to the Bank Manager to produce the said requisition forms. The application was opposed by the complainant. However, by the impugned order, learned Magistrate allowed the application and issued summons to the Bank Manager to produce the said requisition forms.
4. Learned counsel appearing for the petitioner placing reliance on the decision of the Hon’ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in AIR 2005 SC 359 (1), would submit that the accused was not entitled to maintain the application under Section 91 Cr.P.C., before entering into defence and learned Magistrate having passed the impugned order contrary to the law laid down by the Hon’ble Supreme Court in the above decision, the impugned order is liable to be set-aside.
5. Learned counsel appearing for the petitioner submitted that the petitioner / complainant resorted to forgery and therefore, to prove the same, the requisition forms are necessary for fair adjudication of the dispute.
6. A perusal of the impugned order discloses that the learned Magistrate has allowed the application on the reasoning that the accused has taken up a defence that his signatures were forged by the petitioner / complainant in collusion with the Bank and therefore, the requisition forms are necessary for the fair decision in the matter. The reasoning of the learned Magistrate cannot be countenanced. Undeniably, learned Magistrate was seized with the jurisdiction to enquire into the offence under Section 138 of the N.I.Act. The allegations of forgery of bank requisition forms is extraneous to the issue seized by the learned Magistrate. If infact there was any such act of forgery, it is open for the accused to initiate independent action for such forgery. The said issue cannot be decided in a case arising out of the dishonour of cheque issued by the accused. Therefore, the documents sought for by the accused were totally irrelevant for the decision in the case. That apart, the accused having not entered into any specific defence, was not entitled to seek summons to witness for production of the alleged document. The matter was at the stage of cross examination of PW1. The accused has not disclosed his defence as yet. Under the said circumstances, merely on the ground that there were other requisition forms wherein his signature have been forged, the Trial Court could not have allowed the application. This view finds support in the decision referred to by the learned counsel appearing for the petitioner, wherein in Paragraph 25, it is held as under:
“P25: Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is ‘necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code’. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning the production is made and the party who makes it whether police or accused. If under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of nay document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.”
7. The learned Magistrate has passed the impugned order without recording a finding as to the necessity and desirability of the documents sought for by the accused.
The proposed documents are irrelevant and have no bearing on the dispute seized by the trial Court. Therefore, on both these grounds the impugned order is liable to be set-aside. Accordingly, the petition is allowed. The order passed by the learned Judicial Magistrate First Class, Mandya in CC No.184/2011 dated 13.05.2015 is quashed. The application filed by the accused under Section 91 Cr.P.C stands dismissed.
SD/- JUDGE GH