1. Present petition has been filed by the petitioner under Articles-226 and 227 of the Constitution of India read with Section-482 of Code of Criminal Procedure, 1973 with a prayer that impugned order passed by the Additional Chief Judicial Magistrate, Vadodara below Exhs.-6, 24 and 25 in Criminal Case No.660 of 2001 dated 07/05/2012 may be quashed and set aside on the grounds stated in the application.
2. Heard learned advocate Mr. Pancholi appearing for the petitioner.
3. Learned advocate Mr.Pancholi has stated that as per scheme of Negotiable Instruments Act, 1881, presumption would be raised and it is necessary for the petitioner accused to bring on record the documents/correspondence which are with the complainant. He referred to the background of facts and submitted that the cheques/drafts were given to Mahindra Gujarat Tractor Ltd. Therefore, the application has been given which has been turned down by the impugned order. Learned advocate Mr.Pancholi has stated that earlier also Special Criminal Application No.2038 of 2007 with Special Criminal Application No.763 of 2008 was remanded vide order dated 19/01/2012. He has submitted that the application under Section-91 of Criminal Procedure Code, 1973 has been therefore given for bringing on record the documents which ought to have been permitted. Learned advocate Mr.Pancholi, therefore, submitted that impugned order passed by the Additional Chief Judicial Magistrate, Vadodara dated 07/05/2012 may be set aside. Learned advocate Mr. Pancholi has also referred to Section-91 of Criminal Procedure Code, 1973 to emphasize that such a course is permissible and it is necessary and desirable for the Court to pass an order permitting the documents to be brought on record which are in possession of the complainant. Learned advocate Mr.Pancholi has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde, reported in 2008 (4) SCC 54 and emphasized about burden of proof. He has submitted that it is not necessary for the accused to prove his case by entering into the witness box and he has a right to silence. He submitted that present application may be allowed as otherwise it would cause prejudice.
4. Though the submissions have been made by learned advocate Mr.Pancholi, a bare perusal of the impugned order makes it very clear that the petitioner accused has referred to the correspondence and the original of the same may be with the complainant but the copy thereof would be with the accused which he himself has not produced. Further, it is not specified with specific details as to the documents and the purpose for which they are required to be produced. It appears that only fishy inquiry is sought to be made. The Court below has made a reference to the fact that the correspondence or other details regarding payment could be established or brought on record by examining other witnesses. It is also observed that by other documentary evidence in the form of bank account and other details the defence could rely upon the referred documents and evidence which is brought on record.
5. The provisions of Section-91 of the Criminal Procedure Code clearly make it clear that it is an enabling provision that when the Court considers that the production of a document or a material is necessary and desirable for the purpose of deciding an issue, it may direct for the production of a document or a thing in the facts of the case. However, the accused cannot resort to the said provision for the purpose of fishy inquiry when he himself has not produced the copy of the document available with him. Moreover, as and when the occasion arises the applicant accused may produce whatever evidence he desires to produce which will be a matter of appreciation of evidence.
6. A useful reference can be made to the judgment of the Hon'ble Apex Court in the case of State of Orissa v. Debendra Nath Padhi, reported in (2005) 1 SCC 568 wherein the Hon'ble Apex Court referring to the provisions of Section-91 of Criminal Procedure Code, 1973 has clearly made the observations that Section-91 does not confer any right on the accused to produce the documents in his possession to prove his defence. Further, it also refers to the necessity or desirability which would be considered by the court at an appropriate stage. In the facts of the case, what the petitioner desires is production of some documents in the custody of the complainant, though copy thereof could be with the petitioner-accused himself. Moreover, as stated above, without referring to the details, the application is made for getting production of the account or documents vaguely which cannot be permitted.
7. The documents which the applicant accused could have produced and deliberately not produced though in his possession and he desires to make a fishy inquiry calling upon the complainant to produce the record without specific details cannot be permitted. Further, the accused can also confront the witness in the cross examination by posing appropriate question or the material which would not cause prejudice to his defence. Therefore, it cannot be said that the impugned order is erroneous and is likely to cause prejudice to the accused.
8. Moreover, the submissions made by the learned advocate referring to the judgment of the Hon'ble Apex Court in case of Krishna Janardhan Bhat (supra) regarding burden of proof is also well accepted. However, it refers to the manner in which the burden of proof is to be discharged and the right to silence of the accused. It does not make a reference to the manner in which the document could be brought on record or Section-91 Criminal Procedure Code. Therefore, the submissions which have been made by learned advocate Mr.Pancholi cannot be accepted. Present petition which has been filed for quashing and setting aside the order impugned below Exh.6, 24 and 25 passed in Criminal Case No.660 of 2001 by the Chief Judicial Magistrate cannot therefore be entertained.
9. It is also required to be mentioned that the petition is filed under Articles-226 and 227 of the Constitution of India read with Section-482 of Criminal Procedure Code for invoking the inherent jurisdiction whereas the Criminal Procedure Code provides a remedy by way of revision before the Sessions Court instead of filing a petition under Article-226 and 227 of the Constitution of India or under Section-482 of Criminal Procedure Code. In any case as discussed herein above, it does not call for exercise of either the inherent jurisdiction under Section-482 of the Criminal Procedure Code or the extra ordinary jurisdiction under Articles-226 and 227 of the Constitution of India.
10. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed in limine.
(RAJESH H. SHUKLA, J.) (ila) Top