TaxTMI 
TaxTMI 
2021 (10) TMI 309
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.... of Cr.P.C, the petitioner sought to recall PW.1 the complainant for further cross-examination. 4. The respondent was the complainant and the petitioner was the accused before the trial Court. For the purpose of convenience, the parties will be referred to henceforth as per their ranks before the trial Court. 5. The complainant under the complaint Annexure-C sought prosecution of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 6. The gist of the complaint in brief is as follows: The accused was trading in iron ore and on his request, the complainant had financed to the tune of Rs. 19,96,05,000/- under different memorandum of understandings. Towards discharge of the dues of those transactions, the accused issued 10 cheques shown in the complaint for various amounts. Then the accused filed PCR No.12/2013 alleging forgery of cheques. In the conciliation process, the accused agreed to pay Rs. 18,41,33,000/-. Towards discharge of that liability, he issued two cheques for Rs. 9,00,00,000/- and Rs. 9,38,83,000/- respectively. When the cheques were presented they were returned with endorsement 'payment stop....
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....ed to rebut the presumption; (ii) Despite the accused calling upon the complainant to produce the income tax returns, he did not produce the entire income tax returns. Whatever were submitted, was not genuine documents. Therefore the accused was forced to summon the income tax returns from the Income Tax Department; (iii) After the evidence of accused, it was necessary to cross-examine him with reference to the same. Therefore opportunity should have been given to further cross-examine PW.1 by recalling him; (iv) The learned Magistrate followed the procedure for trial of the summon cases and should have given opportunity to lead further examination of the accused. 13. In support of his contentions, he relies upon the following judgments: (i) J.V. Baharuni v. State of Gujarat (2014) 10 SCC 494 (ii) Kalyani Baskar v. M.S. Sampoornam (2007) 2 SCC 258. 14. Sri Ravi.L.Vaidya, learned Counsel for the respondent opposes the petition on the following grounds: (i) In the proceedings relating to the offence under the NI Act, summary trial procedure has to be followed; (ii) Having regard to Section 143 of the NI Act, ....
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....d by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: .................................................................................. Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. ......................................................................................." 20. Reading of the above provisions makes it clear that generally the cases under the Act shall be tried summarily as per the provisions of Sections 262 to 265 of Cr.P.C. The proviso states that having regard to the nature of the case and the s....
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....nd recorded his evidence on several hearing dates and then recorded the evidence of the accused also. None of the parties objected for the same. 25. Therefore it goes to show that the Magistrate opted for the procedure involved in the summons cases and the parties accepted that. Having regard to such conduct of the parties and their acceptance that the case involves only summary trial, there is no scope for such application and it takes back seat. 26. It was contented that after the trial is concluded, Section 91 of Cr.P.C. cannot be invoked. Relying on Mandvi Cooperative Bank Ltd.'s case referred to supra it was contented that in the trial of the offences under Section 138 of the Act, Sections 143 to 147 of the Act shall be strictly followed to avoid delay. In para 25 of the said judgment relied on by learned Counsel for the respondent himself it was held that the trial procedure shall be as expeditiously as possible, but without in any way compromising on the right of the accused for a fair trial. 27. In the case involving the offence under Section 138 of the Act, once the accused admits that the cheque pertains to his account and it bears his signature, then there is pr....
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....to substantiate his defence had sought production of income tax returns and the audited balance sheets annexed to the income tax returns and not seeking prosecution of the complainant for violation of the provisions of the Income Tax Act. Therefore rejection of the application on such ground was not justifiable. 33. So far his application under Section 311 of Cr.P.C, according to the learned Counsel for the accused, PW.1 was sought to be recalled to show that the income tax returns for the years 2010-2011 produced by him was not genuine. If the income tax authorities produce the income tax returns for the years 2009-2010 to 2013-2014 as sought for that itself demonstrates whether the income tax returns for the year 2010-2011 produced by the complainant was genuine or not. 34. Even otherwise need of summoning the complainant on that point arises only after production of those documents. The question of consideration of genuineness of the income tax returns produced by the complainant arises, if at all the income tax authorities say that from 2009-2010 to 2013-2014 the complainant has not submitted any returns. Therefore that application has to be decided after the respo....