1.0 As common question of law and facts arise in both these applications and as such they can be said to be cross petitions, they are disposed of by this common judgment and order.
2.0 Special Criminal Application No.2038 of 2007 has been preferred by the petitioner hereinoriginal accused to quash and set aside the impugned judgment and order dated 21.7.2007 passed by the learned Revisional Court passed in Criminal Revision Application No.224 of 2006 and thereby to confirm the order dated 16.9.2006 passed by the learned JMFC, Vadodara passed below Exhs. 6 , 24 and 25.
2.1. Special Criminal Application No.763 of 2008 has been preferred by the petitioner hereinoriginal complainant to quash and set aside the impugned judgment and order dated 21.7.2007 passed by the learned Revisional Court passed in Criminal Revision Application No.224 of 2006 in so far as allowing the said Revision Application partly and not quashing and setting aside the order passed by learned trial Court passed below Exhs. 6 and 25 in toto.
3.0 The facts leading to the present Special Criminal Applications in nutshell are as under:
3.1. Respondent no.2 hereinoriginal complainant has instituted / filed the complaint being Criminal Case No. 660 of 2001 against the petitioner in the Court of learned JMFC, Vadodara for the offence under Section 138 of the Negotiable Instruments Act. That after the examination in chief of the complainant was recorded at the time of his cross examination, applicant herein original accused submitted application at Exhs. 6 and 25 under Section 91 of the Code of Criminal Procedure directing the complainant to produce the certain documents, the particulars of which are given along with list produced at Exh.25. That the learned Magistrate by order dated 16.9.2006 partly allowed the said application and directed the complainant company to produce the documents mentioned at serial no. 1 to 169 mentioned in application Exh.25 in the Court and in case those documents are not available and / or in possession of the complainant company to file necessary affidavit to that effect. The learned Magistrate also passed an order that those documents already produced on record need not be again produced.
3.1. Being aggrieved and dissatisfied with order passed by the learned JMFC, Vadodara passed below Exhs. 6 and 25 dated 16.9.2006 passed in Criminal Case No.660 of 2001, the complainant preferred Revision Application No.224 of 2006 before the learned Sessions Court, Vadodara and learned Presiding Officer, Fast Track Court No. 9, by impugned judgment and order dated 21.7.2007 has partly allowed the said Revision Application by quashing and setting aside the order passed by the learned trial Court passed below Exhs. 6, 24, and 25 passed in Criminal Case No.660 of 2001 and remanding the matter to the learned trial Court for deciding the said applications at Exh.6, 24, and 25 afresh after giving an opportunity to all concerned. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Revisional Court, both the applicantoriginal accused as well as original complainant have preferred the present applications.
4.0 Shri Pancholi, learned advocate for the applicant original accused has vehemently submitted that the learned Revisional Court has materially erred in allowing said Revision Application and quashing and setting aside the order passed by the learned Magistrate, by which, an absolute innocuous order was passed by the learned Magistrate directing the complainant to produce the documents mentioned in application Exh.25 and if those documents are not available, to file affidavit to that effect, which was not required to be quashed and set aside by the learned Revisional Court. It is further submitted that even no reasons have been assigned by the learned Revisional Court while quashing and setting aside the order passed by the learned Magistrate and remanding the matter to the learned trial Court for deciding the said applications afresh. It is further submitted that on the contrary the learned Revisional Court has relied upon the decisions of the Hon'ble Supreme Court as well as this Court, which were not applicable at all. Therefore, it is requested to allow the Special Criminal Application No.2038 of 2007.
5.0 Shri P. P. Majmudar, learned advocate for the original complainant has submitted that instead of remanding the matter to the learned trial Court, the Revisional Court ought to have quashed and set aside the order passed by the learned Magistrate and ought to have rejected the applications submitted by the original accused at Exh. 6, 24 and 25. It is submitted that for rowing inquiry, accused cannot ask for document for his defence. Therefore, it is requested to allow Special Criminal Application No. 763 of 2008 and to quash and set aside the order passed by the learned JMFC, Vadodara passed below Exhs. 6, 24 and 25 dated 16.9.2006 in Criminal Case No. 660 of 2001.
5.1. Shri P. P. Majmudar, learned advocate for the original complainant has further submitted that even otherwise the learned Magistrate has not considered the provision of Section 91 of the Code of Criminal Procedure in its true perspective and while passing the order directing complainant to produce the documents nothing has been mentioned by the learned Magistrate that production of the said documents are necessary or desirable for the purpose of trial. It is submitted that therefore, unless a case is made out under Section 91 of the Code of Criminal Procedure, the learned Magistrate could not have passed an order directing the complainant to produce the documents asked for.
6.0 Shri Dabhi, learned APP has requested to pass appropriate order in the facts and circumstances of the case.
7.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that application Exhs. 6, 24 and 25 were given by the accused under Section 91 of the Code of Criminal Procedure for appropriate order directing the complainant to produce the documents mentioned in the application Exh. 25, which according to the applicant were needed for the purpose of rebutting presumption under Section 139 of the Negotiable Instruments Act. It is also required to be noted that the said application was given at the stage of recording of deposition of the original complainant and at the time of cross examination of the original complainant. It is required to be noted that only in a case where the Court considers that the production of any documents or other thing is necessary or desirable for the purpose of trial, such Court may issue a summons to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. Therefore, before passing any order under Section 91 of the Code of Criminal Procedure, the concerned Court must form an opinion that the production of any such document or other thing are necessary or desirable for the purpose of trial and such opinion must be reflected in the order. Such an order of production of document under Section 91 of the Code of Criminal Procedure cannot be passed mechanically and unless such an opinion is formed and reflected in the order.
8.0 Considering the order passed by the learned JMFC, Vadodara, it appears that nothing has been mentioned in the order that the documents for which the application is made, are required and / or necessary or desirable for the purpose of trial. It appears that the learned Magistrate has not even formed an opinion that he considers that the production of the documents mentioned in the application Exh.25 are necessary or desirable for the purpose of trial. Under the circumstances, as such order passed by the learned Magistrate cannot be sustained and therefore, as such learned Revisional Court has not committed any error in remanding matter to the learned Magistrate and to consider the application Exh. 6, 24 and 25 afresh in accordance with law and on merits. However, it is to be noted that as such this Court is not in agreement with the reasoning given by the learned Revisional Court while quashing and setting aside order passed by the learned Magistrate. As stated above, the order passed by the learned Magistrate deserves to be quashed and set aside on the ground stated hereinabove and therefore, the impugned order passed by the learned Revisional Court remanding the matter to the learned Magistrate is not required to be interfered with.
9.0 In view of the above and for the reasons stated above, Special Criminal Application No.2038 of 2007 and Special Criminal Application No.763 of 2008 are deserve to be dismissed and are accordingly dismissed and the matter is remanded to the learned Magistrate for considering application Exhs. 6, 24 and 25 afresh in accordance with law and on merits and in light of the observation made hereinabove without in any way being influenced by the present order and/ or order passed by the learned Revisional Court and considering Section 91 of the Code of Criminal Procedure. The aforesaid exercise shall be completed within a period of three months from the date of receipt of the present order. Rule is discharged in both the applications. Adinterim relief granted stands vacated forthwith. Registry is directed to send the writ of this order to the learned Magistrate immediately.
kaushik sd/ (M.R.SHAH, J.)