AI Drafter 
TaxTMI 
TaxTMI 
2024 (3) TMI 441
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....am Kawar (HUF). 2. By the Order dated 18.09.2019, the learned Trial Court has dismissed the application filed by the petitioner, who is an accused in the Complaint Case filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'NI Act'), seeking summoning of the records/documents/books of accounts mentioned in the said application for purposes of cross-examination of the Authorised Representative of the respondent/complainant company, CW-2 Mr. Laxman Kumar. Allegations in the Complaint: 3. The above Complaint Case has been filed by the respondent alleging that it is engaged in the business of providing trading facilities to its clients. It is a member of the National Stock Exchange of India Ltd. (NSE) and the Bombay Stock Exchange Ltd. (BSE) in Capital Market, Future and Options Segment and Currency Segment and is rendering broking services to its clients. 4. The respondent further alleges that the petitioner entered into an agreement to avail the trading facilities with the respondent company by signing Client Registration Form on 22.02.2011 in all segments of NSE and BSE, apart from two separate individual accounts in the name of the....
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....issed the said application and also closed the right of the petitioner to further cross-examine the AR of the respondent. 13. Aggrieved of the said order, the petitioner challenged the same by way of a Revision Petition, being CR 434/2017. The same was partially allowed by the learned ASJ vide order dated 14.12.2017, allowing the petitioner to bring on record the arbitration proceedings pending between the parties and other documents relevant to the proceedings, and granting one more day to the petitioner to conclude the cross-examination of CW1. 14. Still aggrieved of the above order, the petitioner challenged the same by way of Crl.M.C. 1494/2018 before this Court. The same was disposed of by this Court vide its order dated 23.03.2018, modifying only the condition that the cross-examination of CW1 shall be concluded only in one day. This Court held that if for any valid reason, the cross-examination does not conclude in one day, the learned Trial Court shall be at liberty to grant further time to the petitioner to continue the cross-examination of CW1. This Court further directed that in case the petitioner wishes to confront the witness of the respondent with any documents....
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....t of the petitioner to cross-examine the said witness cannot be taken away by not giving a chance to the complainant to seek production of the relevant documents in relation to dispute between the parties. 19. He submits that the learned ASJ has erred in not considering the legal and factual issues raised by the petitioner in the revision petition as also the earlier order of this Court, and has merely copy-pasted the order of the learned Trial Court. He submits that even after hearing the revision petition before it for almost 20 hearings, the learned ASJ, in the Impugned Order, has not dealt with the grounds and legal issues raised by the petitioner herein. Submissions of the Learned Counsel for the Respondent: 20. On the other hand, the learned counsel for the respondent submits that the present petition as well as the application before the learned Trial Court is nothing but a delaying tactic of the petitioner. He submits that the petitioner has admitted before the learned Trial Court to have issued cheques and therefore, a presumption has to be drawn against the petitioner under the NI Act. He submits that the petitioner has been filing numerous applications before th....
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....1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority." 27. A reading of the above provision would show th....
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....n 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof. 26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI (2000) 5 SCC 679. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra case (1996) 9 SCC 766. The contentions based on Satish Mehra case have been noticed in para 4 as under: "4. The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. (1996) 9 SCC 766 laying emphasis on the fact that the very l....
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....he Code. It would also have to be borne in mind that law does not permit a roving or fishing inquiry. 29. The above view has been reiterated by the Supreme Court in V.L.S. Finance Ltd. v. S.P. Gupta (2016) 3 SCC 736. 30. This Court in the recent judgment in Shri. B. Sambi Reddy v. CBI, Neutral Citation no. 2024:DHC:939, in a similar set of facts has held as under: "16. This Court notes that the documents requested by the petitioner do not pertain to the case file or documents pertaining to the case registered against him, rather are a part of another case alleged to have been registered on the complaint of the co-accused against the complainant in the present case. On the other hand, it is the case of the CBI that said documents which have already been supplied to the petitioner are in no manner related to the case of the prosecution nor have been relied upon by the prosecution to prove its case beyond reasonable doubt. Even then by the orders of the learned Trial Court documents have been provided to the petitioner earlier. This only implies that the petitioner is trying to delay the Trial. 17. This court observes that establishing the necessity of presenti....
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....ent in the case of Ashok Chawla v. Ram Chander Garvan, Inspector CBI, MANU/DE/1243/2011, has been referred in which it was observed that Section 91 Cr.P.C. provides that whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons or such officer a written order, requiring the person in whose possession or power such documents are believed to be to attend and produce the same. On similar point, various other judgments have also been relied upon: (i) "The power given under Section 91 of the code is a general and wide power which empowers the court, the production of any document or any other thing at any stage of any investigation, inquiry or other proceedings under the Code of Criminal Procedure It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or things was necessary or desirable in its view, then the court could pass an order b....
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.... (iv) "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 charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section..... In so far 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 ....
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....e of cheque. Also, in cross-examination the accused is required to rebut the presumption under Section 139 NI Act by disproving the liability, by conforming to the line of defence taken in notice under Section 251 Cr.P.C. and in application under Section 145 (2) NI Act. The contention of the accused is that he needs to summon the abovementioned documents for the purpose of cross-examination of the complainant. Perusal of record shows, that complainant has been cross-examined in three effective dates. The accused is free to ask any question to the complainant, but witness can't be compelled to produce the record /document, if witness himself does not wish to produce. It is settled principle that if any witness is deliberately not producing any document, which he is obligated by law to produce, then Court may draw an adverse inference against the witness. The accused has prayed for the summoning of full and complete arbitral records. The present case is not based on an arbitration award, but it is a proceeding under Section 138 NI Act which is a separate proceeding and is based on dishonour of cheque, it is the case of the complainant that accused had availed the service....
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....of complainant for such deficiency. On 26.03.2018, accused/petitioner filed third application claiming same relief. The same was dismissed by Ld. Trial Court vide impugned order dated 18.09.2019. Ld. Trial Court gave liberty to accused/petitioner to produce the said documents in his defence at the stage of defence evidence." 35. The present petition was first listed before this Court on 26.04.2022. This Court directed the petitioner to file a three page summary clearly identifying the documents of which the petitioner seeks summoning before the learned Trial Court, and referring to the relevance of the said documents within the context of the proceedings under Section 138 of the NI Act instituted by the respondent against the petitioner. 36. In compliance with the above direction, the petitioner filed a reply dated 09.05.2022, giving the list of documents and the reason for seeking their production, as under: "1. In pursuance of directions dated 26.4.22 of Hon'ble High Court following documents with justification are prayed to be summoned w.r.t. their relevancy to proceedings u/s 138 of NIA. i. The complete books of accounts, records and documents which ....
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....be summoned relating to sending of the bogus ECNs through the medium of service provider YAHOO with complete IP address. The broker sent fake and bogus electronic contract notes (ECNs) & no reliable proof is available with broker for all the ECN trade logs in terms of SEBI Circular No. MRD/DOP/SE/Cir-20/2005 dated September 8, 2005. iv. The broker misused the M No. 9810111503 (registered under DNCR with Air Tel) to give fake and bogus SMSes to the client through the alleged SMSes service provider M/s Tejosama Techonoligies (P) Limited, 30, Pragati Mansion, 2nd Floor, Dr. D.V.G. Road, Basavanagudi, Bengaluru and mobile service provider M/s Air Tel. Original records from these service providers are to be summoned. v. During the course of cross examination the broker AR did not answer any relevant questions on the illegal ground that all the issues are taken care of by the arbitral awards which are dependent on the arbitral records and the arbitral proceedings. It is statutory as per section 19(1) of the Arbitration and Conciliation Act, 1996 that arbitral tribunal shall not be bound by the CPC 1908 or the Indian Evidence Act, 1872 as such the broker cannot criminall....