TaxTMI 
TaxTMI 
2018 (10) TMI 1329
X X X X Extracts X X X X
X X X X Extracts X X X X
....application under Section 311 of the Cr.P.C. filed by the applicants/petitioners. 2. The complainant/respondent 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 Rs. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fore the Sessions Court, same met to the dismissal being not maintainable. Hence, this petition is preferred 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 C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bject of the provision is to enable the Court to determine the truth and to render a just 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssions Judge has allowed the application and made the observation that the documents can 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....