TMI Blog2021 (10) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... application on such ground was not justifiable. Application under Section 311 of Cr.P.C to be recalled to show that the income tax returns for the years 2010-2011 produced by him was not genuine - HELD THAT:- The power to summon under Section 311 of Cr.P.C can be exercised at any stage of any enquiry or trial, or other proceedings also. Even in Mandvi Cooperative Bank Ltd. s case referred to supra the Hon'ble Supreme Court held that there shall not be any compromise with the fair trial. The said judgment cannot be pressed into service to say that there is total bar to summon or recall the witnesses after the defence evidence is over. Therefore the trial Court shall consider the application under Section 311 of Cr.P.C. after response of the income tax authorities consequent to the summons issued to them under Section 91 of Cr.P.C. - However in the application under Section 91 of Cr.P.C. the only relevant documents are income tax returns and the annexures to the income tax returns and not the documents as sought in the application. The impugned orders of the trial Court dated 06.10.2018 and 20.11.2018 are hereby set aside. The application of the accused under Section 91 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued two cheques for ₹ 9,00,00,000/- and ₹ 9,38,83,000/- respectively. When the cheques were presented they were returned with endorsement payment stopped . Therefore the statutory notice was issued calling upon the accused to pay the said amount for which the accused issued frivolous reply. Thus he sought prosecution of the accused for the offence punishable under Section 138 of the Act. 7. The trial Court on taking cognizance of the offence, registered the case in C.C.No.9472/2014. After the evidence of the complainant and the accused were over on 26.09.2018, the accused filed application to summon the Principal Commissioner of Income Tax, Bengaluru for search, seizure and production of the income tax returns with book of accounts, statement of accounts etc as aforesaid from the custody of the complainant. That application was contested by the complainant. 8. The trial Court by order dated 06.10.2018 rejected the application on the ground that as per the complainant, they have not filed income tax returns, therefore there was no reason to believe that such document was in possession of the witness to invoke Section 91 of Cr.P.C. 9. Relying on the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the offence under the NI Act, summary trial procedure has to be followed; (ii) Having regard to Section 143 of the NI Act, Section 311 of Cr.P.C. is not applicable; (iii) In the application the accused had not stated how the documents sought to be summoned are relevant and the application is outcome of dilatory tactics; (iv) Since the burden was on the complainant to prove his lending capacity, if he failed to produce any documents, he was bearing his own risk; (v) When the complainant said that he has not submitted the income tax returns for the said years, the question of summoning the documents under Section 91 of Cr.P.C. does not arise; (vi) The right to summon the documents is available only during trial and not at conclusion of trial. 15. In support of his contentions, he relies upon the following judgments: (i) Mandvi Cooperative Bank Ltd. v. Nimesh B.Thakore (2010) 3 SCC 83 (ii) Indian Bank Assn. v. Union of India (2014) 5 SCC 590. (iii) M/s. Mahathru Technologies vs. M/s. Creative Infotech Crl.P.No.1329/2020 DD 19.11.2020. (iv) In Re. Expeditious Trial of cases Under Section 138 of N.I. Act, 1881 2021 SCC Online SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lates, the learned Magistrate shall on hearing the parties and recording the reasons proceed in the manner provided in the Code. 21. Section 262 of Cr.P.C. which speaks about the procedure for summary trial reads as follows: 262. Procedure for summary trials (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter. Reading of the above provision makes it clear that even in the summary trial the procedure specified for the summons cases shall be followed. 22. The procedure for summary trial is enumerated in Section 254 of Cr.P.C. which falls under Chapter XX of Cr.P.C. reads as follows: 254. Procedure when not convicted (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation towards discharge of the liability. However, despite that, if the lending capacity of the complainant is disputed, the complainant has to prove that. The accused has to raise reasonable doubt in the mind of the Court about lending capacity of the complainant. 28. The complainant claimed that he had lent ₹ 18,38,83,000/- to the accused which is huge money. In the cross-examination of PW.1 the accused has denied the lending capacity and lending that much money. His claim is that ₹ 5,60,000/- was borrowed and to discharge that debt he repaid more than that, still the accused was demanding further payments. The records further show that the accused filed application calling upon the complainant to produce his income tax returns to demonstrate if so much of amount was lent to him or could be lent to him. 29. The order sheet of the trial Court sufficiently shows that the complainant took his own time to produce the summoned documents. Ultimately he produced the income tax returns for only one year. That was after the evidence of PW.1. Therefore the accused after his evidence was over filed an application to summon the income tax authorities. 30. The complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 91 of Cr.P.C. 35. So far as applicability of Section 311 of Cr.P.C. after conclusion of trial, it is relevant to refer to Section 311 of Cr.P.C. which reads as follows: 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re examine any such person if his evidence appears to it to be essential to the just decision of the case. 36. Reading of the above provision makes it clear that the power to summon under Section 311 of Cr.P.C can be exercised at any stage of any enquiry or trial, or other proceedings also. Even in Mandvi Cooperative Bank Ltd. s case referred to supra the Hon'ble Supreme Court held that there shall not be any compromise with the fair trial. The said judgment cannot be pressed into service to say that there is total bar to summon or recall the witnesses after the defence evidence is over. Therefore the trial Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
