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TMI Blog2020 (6) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... sent legal notice demanding payment of money which was not responded leading to filing of complaint in which the learned Judicial Magistrate took cognizance of the offence under Section 138 of the NI Act on 8-1-2015 and summons were issued to the petitioners/accused. 3. The petitioners after appearance filed an application under Section 203 of the Code of Criminal Procedure, 1973 (for short, 'the Code') stating that the complaint as framed and filed is not maintainable and therefore the complaint be dismissed. The petitioners further filed an objection based on Section 118(a) of the NI Act read with Section 165 of the Evidence Act stating inter alia that the complainants have not disclosed their complete identity with regard to the name of the Director etc., and therefore the complainants be directed to produce documents regarding Khandwa Oils and other details with regard to the accounts. The offence has been registered on 8-1-2015. 4. The aforesaid applications came up for consideration before the learned Magistrate on 3-10-2019 and both the applications came to be rejected holding that the offence under Section 138 of the NI Act registered against the petitioners is triable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sections 251 to 259 of the Code, it is quite clear that in a summons case what the Court does on the appearance of the accused is to state the particulars of the offence, and to ask him whether he pleads guilty or has any defence to make. If the accused does not plead guilty the Court will proceed to record the evidence on the side of the prosecution, hear the accused and take the evidence that the defence may produce. The Court will then either hold the accused not guilty or convict him. Section 255(3) of the Code empowers the Court to convict the accused of any offence which from the facts admitted or proved he appears to have committed, if the Magistrate is satisfied that the accused would not be prejudiced thereby. It is significant to note that Chapter XX of the Code which deals with trial of summons-cases, does not contemplate a discharge of the accused. 11. Their Lordships of the Supreme Court in Adalat Prasad (supra), clearly held that if the Magistrate issues process without any basis, the remedy lies in the petition under Section 482 of the Code, there is no power with the Magistrate to review that order and recall the summons issued to the accused. 12. The aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the petitioners claiming discharge. 16. The petitioners' another application claiming production of documents relating to Company - Khandwa Oils has rightly been rejected by the trial Court as at the stage of evidence, the petitioners are not entitled for seeking production of documents in view of the decision of the Supreme Court in the matter of State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. 17. At this stage, it would be appropriate to take note of the provisions contained in Section 91 of the Code which provides as under: - "91. Summons to produce document or other thing.-(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, 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. (2) Any person required under this section merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Insofar 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 and 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 any document to show his innocence. Under Section 91 summons for production of document can be issued by Court and under a written ..... X X X X Extracts X X X X X X X X Extracts X X X X
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