TMI Blog2018 (10) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit to any parties by delaying the trial. The petitioners have filed an application under Section 91 of the Cr.P.C. before the trial Court for calling the documents relating to Income Tax Return, Balance Sheets and Statements of the Bank Account of the complainant during the period of 01.04.2007 to 31.03.2009, which was rejected by the trial Court. Thereafter, in revision the learned Sessions Judge has allowed the application and made the observation that the documents can be called through concerning Department. From the decision form Hon'ble Apex Court in the matter of Natasha Singh [2013 (5) TMI 964 - SUPREME COURT OF INDIA] it is revealed that the Section 311 of the Cr.P.C. expressly provide the Court wide discretion to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed a complaint under Section 138 of the NI Act against the applicants for dishonoring of the cheque bearing No.002403 dated 02.10.2010 amount of ₹ 17,20,000/- given by the applicants jointly to the respondent. 3. Subsequently the petitioners/applicants have filed an application under Section 91 of the Cr.P.C. before the trial Court for calling the documents relating to Income Tax Return, Balance Sheet, Bank Statements during the period of 01.04.2007 to 31.03.2009 of the complainant/respondent and the same was rejected. Thereafter, the applicants/petitioners have filed a revision petition before the Sessions Court whereby the learned Sessions Judge has allowed the application with the observation that if the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred for. 7. Learned counsel for the petitioners submits that the order passed by both the Courts below are bad in law and deserves to be set aside. The Courts below have failed to see that in the case of 138 of the NI Act the burden is on accused to rebut the presumption. The Income Tax Officer is a necessary witness to prove the transaction has been taken between the parties, whereas in the income tax return filed by the officer the entries have not been shown and same is incomplete. In support of his contention he has relied a judgment in the case of Rajaram Vs State of Bihar report in 2013(14) SCC 461 and submits that the learned Court below has failed to exercise the power vested on its under Section 311 of the Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be called through concerning Department. In the trial, the complainant has given the affidavit that he has submitted all the documents of his possession and he has no more documents to produce before the Court. In compliance of Revisional Court order, the Income Tax Officer has produced the above-said documents before the trial Court and the same was taken on record and dully exhibited, but the evidence of Income Tax Officer could not recorded by the Court. 12. It is revealed from the order of the learned trial Court that after producing the above-said documents by the Income Tax Officer before the trial Court, the petitioners have cross-examined the complainant in relation to the said documents. It is also revealed that the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount has been given through the cash mode and after producing the documents the Court has exhibited the same and the petitioners have crossexamined the complainant in relation to that documents. The application filed by the petitioners under Section 311 of the Cr.P.C. at the later stage of the trial after affording the several opportunities for giving his defence evidence. 15. In view of the above-said discussions and in lack of the entries of disputed amount in the return, this Court of the opinion that there is no necessity to call the Income Tax Officer as a witness to take his evidence. Thus, this is not proper case, in which inherent jurisdiction can be invoked by this Court under Section 482 of the Cr.P.C. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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