TMI Blog2024 (3) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant to be produced by the respondent for proving the case against the petitioner, the Court will draw an adverse inference of their non-production against the respondent. However, at this stage, this Court is of the opinion that the documents, production of which are sought for by the petitioner, are neither relevant nor necessary for a proper and fair adjudication of the Complaint filed by the respondent. In KAILASH VERMA VERSUS PUNJAB STATE CIVIL SUPPLIES CORPN. [ 2005 (1) TMI 406 - SUPREME COURT] , the Supreme Court has held the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is alleged that after the execution of the said agreements and furnishing of the required documents, the petitioner had been allotted the Unique Client Code (UCC). 6. It is alleged that on 2nd week of September, 2011, there was a debit balance of more than Rs. 50,000/- in the account of the petitioner due to execution of trades conducted by it, and for the discharge of the said liability, the petitioner issued a cheque dated 12.09.2011 for the said amount, asking for it to be presented later as he was going through some financial constraints. 7. The respondent alleges that based on the above assurances, the respondent did not present the cheque for encashment and let the trading continue. It is alleged that as on 24.12.2011, there was a debit balance of more than Rs. 3.50 crores in the account of the petitioner. The petitioner, therefore, issued another cheque dated 24.12.2011 of Rs. 1 lakh as part payment, also stating that the balance amount of more than Rs. 1.50 lakhs shall be adjusted against his other account in his individual name and that of his wife. 8. The respondent alleges that as on 10.01.2012, there was a debit balance of Rs. 3,56,300.43/- (Rupees three lakh fifty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from a third party, it would be open to the petitioner to apply to the learned Trial Court for the said purpose. 15. Based on the liberty so granted, the petitioner then filed an application before the learned Trial Court seeking summoning of the whole lot of documents, including, but not limited to, complete books of accounts, records and documents which the broker is required to maintain statutorily as per the byelaws of BSE, gist and results of the inspection and audit done by the Exchange in respect of the respondent, records from SMS service provider-M/s Tejosama Technologies (P) Ltd., from Telecom Service Provider-M/s Airtel, from courier service provider-M/s Overnite Express Ltd., etc. 16. The above application was dismissed by the learned Trial Court vide its Order dated 18.09.2019. The petitioner challenged the said Order by way of a Revision Petition, which has been dismissed by the learned ASJ by the Impugned Order. Submissions of the Petitioner: 17. Mr. Ram Kawar, the Karta of the petitioner, who appears in person, submits that the learned Trial Court as well as the learned ASJ has erred in not considering the judgment of this Court dated 23.03.2018 passed in CRL.M.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elaying the proper and expeditious adjudication of the complaint case filed by the respondent. 21. He submits that the petitioner, in a vague manner, specified huge number of unrelated documents in a proceeding under Section 138 of the NI Act and gave indefinite reasons for summoning the documents in the application. He submits that the summoning of the documents called for and the reasons stated in the application show that the documents are not necessary for the adjudication of the complaint case filed by the respondent. 22. He submits that the learned Trial Court as also the learned ASJ have rightly held that, considering the case of the respondent and the defence of the petitioner, the documents sought for are not relevant for the purpose of adjudication of the complaint filed by the respondent under Section 138 of the NI Act. Analysis and Findings: 23. I have considered the submissions made by the petitioner and the learned counsel for the respondent. 24. This Court in the earlier round of litigation, vide its judgment dated 23.03.2018 in CRL.M.C. 1494/2018, titled Ram Kanwar HUF v. M/s SMC Global Securities Ltd., in relation to an application filed by the petitioner seeking d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns to the person in whose possession or power such document is believed to be, requiring him to attend the Court and produce the documents before the Court or to produce the same at the time and place stated in the summons or the order. The pre-condition for issuing such a direction is the satisfaction of the Court that the document sought is necessary or desirable for the purpose of the investigation or the inquiry. 28. In State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 , the Supreme Court, with regard to the scope and ambit of Section 91 of the Cr.P.C., has held under: 25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code . The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings. 27. Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een disclosed. Instead, the petitioner seeks reference to another case purportedly filed against the complainant. In the court's assessment, at this juncture when the Trial is at the stage of prosecution evidence, the petitioner has not successfully demonstrated to the satisfaction of this court why these documents are pertinent for examination at this stage. In case he needs them, he can file appropriate application before the concerned Court to be provided with certified copies of those documents as they pertain to another State and move appropriate Court of law there in case he fails to get the same. 31. This Court, in Sukhmohinder Singh Sandhu v. CBI, ILR (2010) VI Delhi 407 , has held that Section 91 of the Cr.P.C. cannot be used for making a roving and fishing inquiry. I may quote from the judgment as under:- 11. This provisions of Section 91 of the Cr.P.C. empower a court to summon or order production of any document which it think necessary or desirable for the purpose of inquiry or trial. The word document though not defined in Cr.P.C., however, has been defined in section 3 of Evidence Act and would mean any matter expressed or described upon any substance by means of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f MANU/RH/0569/2005] Rajasthan (ii) As per Section 91 of the Code of Criminal Procedure, when the Court considers that production of any document is necessary or desirable for the purpose of trial of a criminal case, such Court may issue summons for the production of the document sought for. The Court has to judicially consider whether production of the document is relevant for the purpose of trial. Section 91 of the Code of Criminal Procedure does not confer an absolute right on the accused to seek for production of any documents. The party who prays for issuance of summons for production of document has to necessarily demonstrate before the Court that production of such document is material for arriving at a just decision in the case. If the petitioners fail to establish that a particular document is necessary and desirable to be summoned, then the Court shall not summon the document. [ Alagesan and others v. State (2008) Cri.L.J. 3300 (Madras )] (iii) Section 91 Cr.PC envisages production of any document or other thing which according to the court or police officer in charge of the police station is necessary or desirable for the purpose of any investigation, enquiry or trial or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 568 ] (v) Section 91 Cr.P.C. envisages the production of any document or other thing which is required or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code, if the Court is satisfied that such documents are essential and required at the relevant stage of proceedings. For allowing the application for production of documents or other things under Section 91 Cr.P.C., the Court has to deal with the issue of their necessity and relevancy and also whether such documents are required at the stage when they are sought to be summoned by the applicant. Summoning of documents cannot be allowed on a mere asking by the applicant or as a matter of routine. Section 294 Cr.PC provided for admission/denial of the documents filed in the Court by the prosecution or the accused. It also provided that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed and that the court may, in its discretion, require such signature to be proved. [ Chandgiram v. State 2012 SCC Online 1740 ] 33. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused wants to summon are also not relevant for the purpose of this case. This is the stage cross-examination of complainant and at this stage, accused is praying for summoning of unnecessary document which will result in unduly prolonging the matter. The accused is free to bring his evidence or any document at the stage of defence evidence. Hence, considering the case of the complainant and the defence of the accused taken at the stage of under Section 251 Cr.P.C. and in Section 145(2) NI Act, the present application is devoid of merits and stands dismissed. 34. The learned ASJ, while dismissing the challenge of the petitioner to the above order, has observed as under: 18. The present petition is a revision petition and the scope and ambit of revision petition is very limited one. In a revision petition, Revisional Court is to satisfy itself as to correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings. After perusal of impugned order dated 18.09.2019, I find no illegality, irregularity or impropriety in the same. It is reiterated that the first application claiming same relief was filed by accused/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated illegally by the broker that the maintenance of such records, books etc. is a matter between it and the exchange so these documents need not be produced on the records of the learned trial court for cross examination of the AR. As per the judgement of the Hon ble Supreme Court in the case of M.S. Narayana Menon@ Mani (Appellant) Vs. State of Kerala Another (Respondent) decided on 4.7.2006 in Appeal (Crt.) 1012 of 1999 . a broker is supposed to maintain the books of as per regulatory requirements in the stock market. ii. The respondent committed forgery in the signatures of the petitioner in the physical delivery slips (POD) in connivance and collusion of the courier service providers namely (i) M/s On Dot Courier Cargo Ltd., 8/42, Kirti Nagar Industrial Area, New Delhi and (ii) M/s Ovemite Express Limited, Overnight House 11099C, East Park Road, New Delhi-110005 in the delivery of various documents such as: a. The alleged bogus delivery of the welcome kit, the pin matter, the service of Client Registration Form, etc. b. The bogus delivery of contract notes. c. The bogus delivery of ledger, quarterly sta about tements etc. All original ADs complete records are to be summoned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orma contained in the said trading regulations may kindly be summoned from the exchange to know about the illegalities committed by the broker in entering unauthorized trades in the petitioner account. 37. From the above, it is apparent that the petitioner is seeking the production of documents only with the intent of conducting a fishing and roving inquiry and to, in fact, embarrass the trial. Such attempt of the petitioner cannot be allowed to succeed. In any case, if the learned Trial Court is later of the opinion that these documents were relevant to be produced by the respondent for proving the case against the petitioner, the Court will draw an adverse inference of their non-production against the respondent. However, at this stage, this Court is of the opinion that the documents, production of which are sought for by the petitioner, are neither relevant nor necessary for a proper and fair adjudication of the Complaint filed by the respondent. 38. In Kailash Verma v. Punjab State Civil Supplies Corpn. Anr., (2005) 2 SCC 571 , the Supreme Court has held as under: 5. It may also be noticed that this Court in Rajathi v. C. Ganesan (1999) 6 SCC 326 said that the power under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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