Learned Advocate on behalf of the petitioner submitted that such application under Section 91, Cr.P.C. that too at the stage when defence evidence was already led in the trial, was not permissible according to law. He criticised the impugned order as
unjust and contrary to law in view of judicial precedent regarding rt
provision contained in Section 91 of Cr.P.C. and submitted that the
impugned order is not at all sustainable according to law. Regarding the legal position, it is submitted that Division Bench of
Bombay High Court in the ruling of Vinayak Purushottam Kalantre v. Vikram Balwantrao Deshmukh and ors., reported in 1979 CRI.L.J.71, considering the Constitution Bench
judgments in State of Bombay v. Kathi Kalu Oghad reported
in AIR 1961 SC 1808, State of Gujarat v. Shyamlal Mohanlal, reported in AIR 1965 SC 1251, as also ruing in
M.P.Sharma v.Satish Chandra, reported in AIR 1954 SC 300 the contention advanced before the Division Bench that the
documents in custody of the accused can be called for by the
Court and is admissible in evidence was not accepted. In view of the later decision in Shyamlal's case that Section 91 (old Sec.94 of om
Cr.P.C.) does not apply to the accused person at all. Therefore, where it is intended by the complainant to require the accused to produce document, which is incriminatory in nature, the summons
cannot be issued. In the present case also there is no dispute that the complainant wanted the accused to produce documents in view of Section 91, Cr.P.C. The legal position appears clear that summons to produce documents calling upon the accused under Section 91 of Cr.P.C. to produce incriminatory documents is not permissible.
Bombay High Court
Mahendrakumar Kanhyalal Jain v Shri Mahavir Urban Co-operative on 19 June, 2013
Bench: A.P. Bhangale
Cri.W.P.409 of 2005
DATE : 19th June 2013
Citation; 2013 (6) MH L J 161
2. A question of law, whch is sought to be raised in this petition is as to whether summons can be issued against the accused calling upon him to produce documents in his custody or B
possession in the criminal trial, wherein complainant wants to rebut defence of the accused.
3. It appears that in the pending Summary Criminal Case No. 3061/2003, in a trial arising out of complaint under Section 138 of
the Negotiable Instruments Act, the complainant Shri Mahavir rt
Urban Co-operative Credit Society Ltd., Jalgaon through its ou
authorised Recovery Officer had lodged complaint on the ground that the accused (present petitioner) had obtained loan from the C
complainant-company. The cheque in question bearing No. 841812 drawn upon United Western Bank Ltd., Jalgaon on 9.4.2003 for sum of Rs.72,16,911/- was presented by the h
complainant in Akola Urban Co-operative Bank Ltd., Akola, branch
Jalgaon on 10.4.2003 for encashment. The cheque was returned dishonoured with Bank memo from the United Western Bank Ltd., H
Branch Jalgaon with a remark "Full cover not received" In other words, there were no sufficient funds in the account of the y
accused, hence cheque was dishonoured. The complainant, ba
therefore, demanded payment by notice sent by R.P.A.D. and under postal certificate, calling upon the accused to pay the om
amount within fifteen days. Though the accused received that notice on 1.5.2003, the amount demanded was not paid. That being so, the complaint was lodged alleging offence punishable B
under Section 138 of the Negotiable Instruments Act. It cannot be disputed that such complaints are triable as summary criminal cases, in view of Section 262 to 265 (both inclusive of the Criminal Procedure Code) and the legislature in its wisdom enacting Section 143 of the Negotiable Instruments Act made provision for expeditious trial in such cases.
143. Power of Court to try cases summarily rt
(1) Notwithstanding anything contained in the Code of ou
Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the C
provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials : h
Provided that in the case of any conviction in a summary ig
trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term H
not exceeding one year and an amount of fine exceeding five thousand rupees :
Provided further that when at the commencement of, or in ba
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 om
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 B
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. (2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the
Court finds the adjournment of the trial beyond the rt
following day to be necessary for reasons to be recorded ou
in writing.
(3) Every trial under this section shall be conducted as C
expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
Sections 143 to 147 were inserted by the Negotiable
Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (55 of 2002), S. 10 (w.e.f. l6-2-2003).Legislative intention ought to be given effect by the Courts.
4. In the present case, it appears that the evidence was led by the complainant and completed. Statement of the accused under om
Section 313, Cr.P.C. was recorded. One defence witness was also examined by the accused. It is, under these circumstances that B
the complainant moved an application under Section 91 of the Criminal Procedure Code on the pretext that complainant wants to rebut defence evidence and, therefore, wants the accused to produce account books, cash book, ledger, balance sheet, income tax returns for the period between 1999-2004. The application under Section 91 of the Criminal Procedure Code for direction to
the accused to produce documents was strongly objected on rt
behalf of the accused on the ground that the application was an ou
attempt to protract the trial. Secondly on the ground that such application would defeat the basic principle of law that an accused
cannot be called upon to produce the evidence against himself and further on the ground that Section 91, Cr.P.C. is not meant for to fill the gap remaining in the complainant's case at the cost of h
the accused. Hence, application was seriously objected. ig
5. Learned trial Magistrate, who passed the impugned order H
directing the accused to produce documents required by the complainant observed that he had power to issue general search y
warrant under Sec.93 (1) (c) of Cr.P.C. to search the premises of ba
accused and by issuing such general search warrant, it cannot be said that accused has been compelled to produce evidence om
against himself. Thus, the learned trial Magistrate overruled the objection and allowed the application calling upon the accused to produce the documents, mentioned by the complainant in B
application Exh.34.
6. Learned Advocate on behalf of the petitioner submitted that such application under Section 91, Cr.P.C. that too at the stage when defence evidence was already led in the trial, was not permissible according to law. He criticised the impugned order as
unjust and contrary to law in view of judicial precedent regarding rt
provision contained in Section 91 of Cr.P.C. and submitted that the ou
impugned order is not at all sustainable according to law. Regarding the legal position, it is submitted that Division Bench of C
Bombay High Court in the ruling of Vinayak Purushottam Kalantre v. Vikram Balwantrao Deshmukh and ors., reported in 1979 CRI.L.J.71, considering the Constitution Bench h
judgments in State of Bombay v. Kathi Kalu Oghad reported ig
in AIR 1961 SC 1808, State of Gujarat v. Shyamlal Mohanlal, reported in AIR 1965 SC 1251, as also ruing in H
M.P.Sharma v.Satish Chandra, reported in AIR 1954 SC 300 the contention advanced before the Division Bench that the y
documents in custody of the accused can be called for by the ba
Court and is admissible in evidence was not accepted. In view of the later decision in Shyamlal's case that Section 91 (old Sec.94 of om
Cr.P.C.) does not apply to the accused person at all. Therefore, where it is intended by the complainant to require the accused to produce document, which is incriminatory in nature, the summons B
cannot be issued. In the present case also there is no dispute that the complainant wanted the accused to produce documents in view of Section 91, Cr.P.C. The legal position appears clear that summons to produce documents calling upon the accused under Section 91 of Cr.P.C. to produce incriminatory documents is not permissible. The ratio decidendi in the ruling of Vinayak
7
Purushottam Kalantre v. Vikram Balwantrao Deshmukh rt
and ors (supra) is binding on this Court. It appears that the ou
same view was also taken by Single Judge of this Court in Manjula Ramlal Barot v. Iswarlal P.Barot and ors., reported C
in 2006 CRI.L.J. 3779 following the Division Bench judgment in Vinayak Kalantre's case.
7. Learned Advocate on behalf of respondent-complainant ig
made reference to ruling in Central Bureau of Investigation v. Abdul Karim Ladsab Telgi and ors., reported in 2005 CRI.L.J. H
2868. Learned Single Judge Bench decision of this Court to argue that there was application for permission to record voice sample y
of the accused for the purpose of identification of his voice, so as ba
to compare it with tape recorded telephonic conversation. Thus, accused was required to give his voice sample. It was held that it om
did not infringe Article 20 (3) of the Constitution as it does not amount to "testimonial compulsion". It appears that this Court was considering the order, which was passed by the Special Judge B
under the Maharashtra Control of Organised Crimes Act, 1999. The order below Exh.156 in Special Case No.2 of 2003 by Special Court at Pune was in respect of the application seeking co- operation from the accused, who was in jail and request was at the instance of investigating agency which required to identify the voice of the accused concerned and to compare it with a tape
recorded telephonic conversation. It is in that context that Single rt
Judge Bench of this Court considering Article 20(3) of the ou
Constitution of India held that there was no testimonial compulsion against the accused, while observing that voice is C
associated with an individual or his person and a personal trait, if scientific analysis for identification of voice is possible then, there is no inhibition in taking the voice sample of a person on the basis h
of which, his identity in the tape-recorded telephonic conversation ig
can be established. Looking to the ruling relied upon on behalf of the respondent, it appears that Single Judge Bench of this Court in H
case of C.B.I. was examining the order passed by the Special Court, upon application by the investigating agency in aid of y
investigation. In the present case, however, the facts are ba
different. In a complaint under Section 138 of the Negotiable Instruments Act, triable as a summary case, the complainants led om
their evidence, the accused was examined under Section 313, Cr.P.C. and also led defence evidence. The application requiring the accused to produce documents was moved at the fag end of B
the complaint proceedings. Such application, in view of the rulings referred above is not maintainable under Section 91 of Cr.P.C. Such application, if allowed would not only be contrary to law, but also would protract and delay the complaint proceeding, which according to law ought to be disposed of expeditiously and as early as possible by the trial Magistrate. Accused person cannot ::
9
be compelled to disclose incriminatory documents before Court rt
under S. 91.
ou
8. Considering all these reasons, the impugned order is C
unsustainable, contrary to law and indefensible. Hence, it is quashed and set aside. Rule is made absolute accordingly.
( A.P. BHANGALE, J.)
No comments:
Post a Comment