TaxTMI 
TaxTMI 
2023 (1) TMI 1132
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....ct. 2. The petitioners are facing a trial for an offence punishable under Section 138 of the N.I. Act. The complainant/respondent no.2 filed a complaint against the petitioners in the Court of Chief Judicial Magistrate, Aurangabad, which is presently pending in the Court of learned Judicial Magistrate First Class, Aurangabad. In the complaint, it is alleged that the accused took hand loan of Rs.12,50,000/- from the complainant as they had good relations. The accused also executed a promissory note dated 21.03.2016. Towards repayment of the hand loan, the accused issued a cheque dated 28.06.2017 for an amount of Rs.12,50,000/-. On presentation, the cheque was dishonoured and therefore a notice was sent demanding an amount. Since in spite of....
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....D on 28.03.2022. He again mentioned in the application that the documents produced on record by the complainant in his evidence appeared to be suspicious and specifically his balance-sheet and other supporting documents creates a doubt and therefore it is necessary to issue witness summons to the Income Tax Authority and to call him with record in respect of the complaint. The learned trial Judge rejected the application by considering the scope under Section 91 of Cr.P.C., the nature of complaint and observed that this complaint is not for deciding authenticity of any documents. It is further observed that under the N.I. Act, it is the complainant who has to prove his case and thereafter the onus shifts on the accused to rebut the presumpt....
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....2014 ALL MR (Cri) 5055. ii. T.R. Ajayan Vs. M.Ravindran reported in LAWS(KER) 2008-1-15. iii. Dagi Ram Pindi Lall Vs. Trilok Chand Jain reported in LAWS(SC)-1992-2-6 7. In the case of Kamal Ahmed (supra), this Court held that by rejecting the application for issuing summons to the authority, the learned Judge failed to comprehend the correct legal position with respect to the rights of an accused to have documents summoned or produced before the Court for the purpose of defense. Paragraph no.32 of the said judgment reads as below. "32. In my opinion, the learned Judge failed to comprehend the correct legal position with respect to the rights of an accused to have documents summoned or produced before the Court for the purpose of his ....
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....ed persons and the same was dismissed by the trial Judge. Applications were therefore filed in the Kerala High Court. The Court after considering the various judgments and the provision of Section 138(1)(b) of the Income Tax Act and observed that the finality attached to an order of the Commissioner under Section 138(1)(b) has no relevance to the exercise of powers by a court to summon the production of documents in a case pending before the Court. An embargo contained in Section 138(1)(b) of the Act, has nothing to do with the powers of the Court under Section 91 of the Cr.P.C., even if no public interest is involved. The applications in that case were thus allowed by the High Court. 9. In the case of Dagi Ram Pindi Lall (supra), the Hon'....
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....lainant to produce on record ITR, account statement even of the family members of the complainant and in that view of the matter, the Court held that the application was clearly to protract litigation. The judgment is therefore not applicable to the present case. 11. Taking into consideration the submissions and the judgments, this Court finds that the accused had right to establish his case and for that purpose he can certainly make a prayer for summoning a witness. It is specific case of the accused that he suspects that the copies of the balance-sheet and the ITR filed by the complainant on record are not genuine. It is for that reason, he has filed an application praying for summons to the proper authority so that the copies of the doc....