TMI Blog2017 (8) TMI 1693X X X X Extracts X X X X X X X X Extracts X X X X ..... , is reflected in the accounts book, bank account, income tax return etc., therefore, petitioner moved an application under Section 91 of Cr.P.C. so that controversy can get clarity in respect of factual averments. Therefore, petitioner was right in moving the application seeking those documents on record to confront the complainant about the statement made by him vis a vis documents. Whether petitioner could have availed of such opportunity under Section 91 of Cr.P.C. while confronting the complainant? - HELD THAT:- The trial Court has relied upon the judgment rendered by the Hon'ble Apex Court in the matter of State of Orissa Vs. Debendra Nath Padhi [ 2004 (11) TMI 564 - SUPREME COURT] wherein the Hon'ble Apex Court has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case are that respondent/complainant filed a private complaint before JMFC, Gwalior under Section 138 of the Negotiable Instruments Act on the basis of allegations that the complainant has granted loan of Rs.86 lacs to the petitioner and in lieu thereof petitioner issued two cheques details of which are mentioned in the petition memo which got dishonoured and therefore, the case has been filed under Section 138 of Negotiable Instruments Act. Cognizance has been taken by the trial Court. During cross examination, complainant in para 10 has admitted that he is engaged in occupation of Priesthood and is filing income tax return for last 3 to 4 years through his Chartered Accountant. Further in para 11 of his cross examination compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in passing the impugned order and rejecting the submission advanced by the petitioner. According to him, complainant has filed the case for dishonoure of cheque to the tune of Rs.86 lacs, therefore, it is highly improbable that the said amount is not routed through the Bank nor reference of said transaction would find place in income tax returns. Therefore, the document which may establish innocence of petitioner and which have material bearing in the controversy can be brought through application under Section 91 of Cr.P.C. during the stage of cross examination of complainant. He relied upon the judgment of Hon'ble Apex Court in the matter of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, Helios and Matheson Informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vis a vis documents. Now the question is whether petitioner could have availed of such opportunity under Section 91 of Cr.P.C. while confronting the complainant. The trial Court has relied upon the judgment rendered by the Hon'ble Apex Court in the matter of State of Orissa Vs. Debendra Nath Padhi (supra) wherein the Hon'ble Apex Court has held that remedy of application under Section 91 of Cr.P.C. is not available to the accused at the time of framing of charge. In fact the said judgment was in respect of right of accused under Section 91 of Cr.P.C. at the time of framing of charge because this aspect has been clarified in subsequent judgment by the Hon'ble Apex Court in Helios and Matheson Information Technology Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court at the time of framing of charge could consider the material filed by the accused and it answered the said issue in the negative. It is well known that the accused can establish or probablise his defence through the prosecution witnesses as well and being so, if any document or thing is required to establish that defence then there is no reason why the Court should not accept the said contention. Here, the necessity or desirability of documents to be summoned under Section 91 of Cr.P.C. in defence of accused is paramount consideration. In the present case, complainant has specifically averred regarding his source of income as priesthood and earning Rs.30-40,000/- per month, therefore, the question naturally arises about huge s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veracity of the claim and counter claim can be tested. Therefore, in the fact situation of the case, trial Court has erred in rejecting the application preferred by the petitioner. Once the necessity and desirability of documents to be summoned has been established then the trial Court ought to have called the documents to confront the witnesses. For doing complete justice between the parties, it is imperative that petitioner be allowed to confront the complainant by the documents to be summoned in defence of the accused. Resultantly, the impugned order is hereby set aside and the application preferred by the petitioner under Section 91 of Cr.P.C. is hereby allowed. Matter is remanded back to the trial Court for consequential fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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