By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the order dated 26th June, 2006 passed by the learned Additional City Sessions Judge, Court No.8, Ahmedabad in Criminal Revision Application No.206 of 2006 whereby the learned Additional City Sessions Judge has allowed the Exhibit 14 application in favour of present respondent No.2-original accused.
The short facts of the present case is that the applicant herein happens to be the power of attorney holder of one Rajesh Agrawal, proprietor of Sarita Fabric. He has filed one complaint on 14th May, 1998 against the present respondent No.2 and another under Section 138 of the Negotiable Instruments Act and the said complaint came to be registered vide Criminal Case No.1175 of 1998 before the learned Metropolitan Magistrate Court No.4, Ahmedabad. In the said criminal case, present applicant has filed affidavit by way of chief examination under the provisions of Section 145 of the Code of Criminal Procedure on 23rd March, 2006. It is further the case that the learned advocate for the respondent No.2-original accused started cross-examination and during the cross-examination, the applicant herein has deposed that the transaction between him and respondent No.2-original accused was of money lending transaction. It is further stated in the said affidavit that entries in respect with the above-said transaction is mentioned in the account books of Sarita Fabrics. Therefore, pending the cross-examination of the applicant, the respondent No.2 filed one application vide Exhibit 14 under the provision of Section 91 of the Code of Criminal Procedure before the learned Magistrate seeking direction upon the applicant to produce documents relating to entries in account-books in Sarita Fabrics.
After hearing the parties, the learned Magistrate vide his order dated 09th May, 2006 rejected the application Exhibit 14. Being aggrieved by the said order, the respondent No.2-original accused preferred Criminal Revision Application No.206 of 2006 before the Sessions Court wherein the learned Additional City Sessions Judge after perusing the papers as well as records, has allowed the application Exhibit 14 in favour of the respondent No.2 vide his order dated 26th June, 2006 and directed the applicant to produce the account books of Sarita Fabrics along with account book of Rajesh Agrawal.
Being aggrieved by the said order, the applicant herein has preferred the present revision application before this Court.
Heard learned counsel for the petitioner, Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent No.1-State and Mr.Nikhil Vyas for Mr.Ashish Dagli, learned counsel for the respondent No.2.
Learned counsel for the petitioner states that the order passed by the learned Magistrate is just and proper and need not required any interference by the learned Additional Sessions Judge. The order passed by the learned Additional Sessions Judge is bad in law. He has also contended that the learned Additional Sessions Judge has not considered provision of Section 91 of the Code of Criminal Procedure. He has contended that the document asked for by the respondent No.2-original accused is not admissible in evidence and therefore, allowing the application of the respondent No.2 is contrary to law. The learned Additional Sessions Judge has committed grave error in allowing the application Exhibit 14 in favour of the respondent No.2-original accused. He has also contended that transaction is relating to money lending and interest thereto of about Rs.07,00,000/- in cash and Rs.03,00,000/- by way of cheque. He, therefore, contended that the respondent No.2, who is dealing in lacs of rupees, must have some documents in his possession and therefore, instead of asking documents from the applicant, he ought to have produced the said documents before the Court. The learned Additional Sessions Judge has not considered this vital aspect and has allowed the application Exhibit 14. The learned counsel for the applicant, therefore, prayed to quash and set aside the order passed by the learned Additional Sessions Judge.
As against this, Mr.Vyas for Mr.Dagli, learned counsel for the respondent No.2, states that the learned Magistrate has simply rejected the application Exhibit 14 without assigning proper legal reasons. It is the duty of the learned Magistrate to properly consider the matter and to give legal reason for rejecting the application Exhibit 14. The learned Magistrate has observed that that the respondent No.2 is trying to delay the trial, which is in fact not true and correct. Mr.Vyas further states that the documents in question relating to transaction of payment and it is for the complainant to prove his version by substantiating evidence. The learned Additional City Sessions Judge has after considering the necessity of the document in question and after considering evidentiary value of the said document, allowed the application Exhibit 14 in favour of respondent No.2. Mr.Vyas, therefore, contended that the order passed by the learned Additional City Sessions Judge is absolutely just and proper and is required to be confirmed.
Heard learned counsel for the respective parties as also perused documents produced on record. It is the duty of the complainant, i.e. in the present case applicant, to prove his case by leading documentary evidence. It appears that during the cross-examination the respondent No.2-original accused came to know that documents relating to transaction of payment is in possession of the present applicant-original complainant and therefore, he as filed Exhibit 14 application, which is his right. The observation made by the learned Magistrate that the respondent No.2 is trying to delay the trial is absolutely not just and proper. The right of the respondent No.2-accused cannot be denied by the learned Magistrate. The learned Additional City Sessions Judge has after considering the necessity and evidentiary value of the documents in question directed the present applicant to produce copies of the entries in account-books of Sarita Fabrics relating to transaction taken place with the respondent No.2-original accused along with original account-books. The learned Additional City Sessions Judge after properly appreciating the facts of the case has passed absolutely just order.
In view of aforesaid, I am of the opinion that the learned Additional City Sessions Judge has not committed any error in passing the order dated 26th June, 2006. Hence, the present revision application is hereby rejected. The order dated 26th June, 2006 passed by the learned Additional City Sessions Judge, Court No.8, Ahmedabad in Criminal Revision Application No.206 of 2006 is hereby confirmed. Interim relief shall stand vacated. Rule is discharged. Record and Proceedings, if any, be sent back to the trial Court concerned forthwith.
(Z.
K. Saiyed, J) Anup Top