MOHAMMAD AYAAZ KHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The applicant has preferred this petition under section 482 of the Cr.P.C., 1973 assailing the order dated 15/11/2017 passed by the Judicial Magistrate First Class, Indore in Criminal Case No. 16661/2013, whereby the application filed by the applicant under section 91 of the Cr.P.C., 1973 has been rejected.

(2.) The facts giving rise to filing of this petition are that the respondent filed a complaint against petitioner alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 ( in brevity " NI Act"). In the averments made in the complaint that the applicant entered into an oral agreement to sale flat and penthouse to the respondent on account of sale consideration of Rs. 25.00 Lacs in cash. When the complainant/respondent inquired about the aforesaid property then he came to know that the flat and penthouse are not owned by the applicant. Then respondent demanded his money and applicant issued a cheque bearing No. 019494 dated 01/04/2013, drawn on HDFC Bank Limited, Branch at Palsikar Colony, Indore of Rs. 25.00 Lacs to the respondent. When the respondent presented the said cheque to its Bank viz. United Bank of India, Branch at Khatiwala Tank, Indore for encashment, then same was returned unpaid due to insufficiency of funds in the account of respondent, vide cheque return memo dated 08/04/2013. Thereafter, respondent issued demand notice through his counsel to the applicant on 13/04/2013 by registered post, which was not received by the applicant and returned unclaimed. Then respondent filed a criminal complaint under Section 138 of the "NI Act" on 18/05/2013, which is pending before the court of Judicial Magistrate First Class, Indore. During trial, respondent examined himself as PW-1 and after recording the statement of the applicant under section 313 of the Cr.P.C., 1973 the case is fixed for the defense evidence. At that stage applicant filed an application under section 91 of the Cr.P.C., 1973 and made a prayer to the trial Court for production of certified documents pertaining to income tax returns of the respondent in the year 2011, which was rejected by the impugned order.

(3.) Learned counsel for the applicant submits that the trial Court has failed to consider that the income tax assessee is required to mention its assets and liabilities in his income tax return, therefore, if the averments of the complaint/respondent are true then he is required to mentioned the fact of given Rs. 25.00 Lacs to the applicant in his income tax return. Hence, the income tax return of the respondent is best piece of the evidence, which has been suppressed by the respondent. Thus, income tax returns of the respondent is a best evidence to bring the truth before the trial Court and at the stage of defense evidence, the applicant is entitled for issuance of summons to produce any document under section 254(2) of the Cr.P.C., 1973 which is a valuable right given to the accused for proving his defense before the trial Court. Under these circumstances he prayed for setting aside of the impugned order and that the respondent may be directed to file certified copy of the income tax returns of the year 2011.