2017 (8) TMI 1693

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....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 complainant admitted t....

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....gned 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 Information Technology Limited and....

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....ion 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 and others (supra) wherein para 19 it ha....

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.... 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 sum lent by him to the petitioner that too through the mode ....