Dharmendra Jayantilal Patel vs State Of Gujarat &

The petitioner before this Court seeks to challenge the order of the trial Court passed below Exh.62 in Criminal Case No. 292 of 2014, which is a proceeding under Section 138 of the Negotiable Instrument Act. The petitioner is the original accused who has challenged the production of ledger account. According to him, along with papers of income tax return for the accounting year 2014-15, the documents submitted below Exh. 43 are not genuine, as out of page Nos. 1 to 6, the page No. 6 is concocted and deliberately joined as a part of IT return. He therefore, moved an application before the court concerned urging that Page 1 of 5 HC-NIC Page 1 of 5 Created On Tue May 10 00:33:15 IST 2016 R/SCR.A/2729/2016 ORDER the responsible officer from the Income tax Department needs to be summoned, which has been objected to by the other side. The Court denied the same on the ground that no reason is given as to why such summons is necessary. Moreover, the Court did not find any adequate and sufficient reason for allowing such application and rejected the application on15.2.2016. Aggrieved petitioner moved revisional Court in Criminal Revision Application No. 108 of 2016 before City Civil and Sessions Court. The Court upheld that the order of the trial court on the ground that petitioner had cross-examined the witnesses on these documents which are papers of income tax returns of the year 2014-2015. What is important in a matter under Section 138 of the Negotiable Instrument Act is signature of the partner on the cheque. There is no defence of the petitioner that he has not signed the cheque. Presumption also can be raised in this regard under the law. The Revisional Court is of the opinion that such an application has been tendered only to further delay the trial and therefore, rejected revision application vide its order dated 7th April, 2016.

The petitioner approached this Court seeking Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue May 10 00:33:15 IST 2016 R/SCR.A/2729/2016 ORDER the following relief :-

(A) Your Lordships be pleased to admit and allow the present petition.

(B) Your Lordships be pleased to quash and set aside the impugned order dated 7.4.2016 passed in Criminal Revision Application No. 108 of 2016 and further be pleased to direct the learned Additional Chief Metropolitan Magistrate, N.I.Act, Court No. 35, Ahmedabad to issue the witness -summons as prayed below Exh. 62 in Criminal Case No. 292 of 2014. (C) During pendency and final disposal, Your Lordships be pleased to stay the further proceedings of Criminal Case No. 292 of 2014 pending in the learned Additional Chief Metropolitan Magistrate, N.I.ACt Court No. 35, Ahmedabad, in the interest of justice (D) Your Lordships be pleased to pass any other and further order/s as may be deemed fit and proper in the interest of justice.

Mr.M.B.Rana, learned advocate appearing for the applicant has been heard at length .According to him, ledger account is concocted by denying him a chance to summons an officer from the Income Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue May 10 00:33:15 IST 2016 R/SCR.A/2729/2016 ORDER Tax Department . The right of the accused has been seriously jeopardized. He has urged that from the beginning it is stand of the petitioner that this ledger account does not belong to petitioner

-original accused .

Learned APP also has been heard.

This Court has given due consideration to the submissions and also examined the material on record. The cross-examination undertaken by the petitioner and the complainant was also thoroughly considered and there does not appear to be any pointed question in relation to ledger account. It is not the case for the cross-examination of the petitioner that this is concocted document. Matter is still to be adjudicated, as the revisional Court has pointed out. The trial Court is required to see the ingredients of Section 138 of the Negotiable Instrument Act while deciding the case of the complainant. Eventually, it is for the trial Court to decide as to what reliance is to be placed upon such document which is already proved and deserves appreciation at the time of final adjudication. If the Court comes to a conclusion that such document is concocted, the course is open to prosecute the concerned person for production of such document.

Petitioner in any case can argue before the court concerned in that regard. Moreover, if such document is relied upon by the Court, the petitioner shall be at liberty to challenge the same before the Appellate Forum as well. However, at this stage, in absence of any specific cross-examination being made in relation to 6th page of the ledger account. No case is made out for interfering with the orders of both the Courts below. Hence, this petition stands dismissed .

The petitioner is directed to co-operate in the final hearing of the matter before the trial Court.

(MS SONIA GOKANI, J.) BINA Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue May 10 00:33:15 IST 2016