Afr High Court
Case Details
SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 1 2025:CGHC:46775 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 701 of 2022 1. Kartikey Enterprises Proprietor, Ramkrishnan Raju Aged About 50 Jyears, S/o R. Satyanarayana Raju, Address - Flat No.302, Metro Jail, Apartment, Science Valley, Losang Garden Road, Madhopur, P.S. Madhopur, Hyderabad (Andhra Pradesh) ... Petitioner versus 1. Devji Export, Proprietor Vinod Soni, Babulal Soni, R/o Infront Of National Tailors, Near Masjid, Chhotapara, Raipur, P.S. City Kotwali, Raipur Chhattisgarh. ... Respondent For Petitioner
Legal Reasoning
: Mr. B.L. Sahu, Advocate For Respondent : Mr. Shikhar Sharma, Advocate Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 12/9/2025 1. This petition is filed against the order dated 8.10.2021 passed by learned Additional Sessions Judge/Special Judge of Special Court for trial of CBI cases, Raipur in Criminal Revision No.195/2020 whereby learned revisional Court allowed revision filed by applicant therein, set aside the order passed by learned Judicial Magistrate 1st Class, Raipur in Complaint Case No.6071/2018 allowing application filed 2 under Section 91 of Criminal Procedure Code 1973 by petitioner herein and directing to place on record the documents like pass-book, cash book and income tax returns. 2. Learned counsel for petitioner submits that respondent herein has filed an application under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act of 1881’) pleading therein that petitioner issued cheque amounting to Rs.86,71,850/- in discharge of liability. As the claim made against petitioner was of huge amount, petitioner after causing appearance, submitted an application under Section 91 of CrPC for production of relevant documents so as to ascertain whether at relevant point of time respondent was having such a huge amount as mentioned in the cheque. Learned Magistrate upon appreciation of pleadings made in application and submission of learned counsel for respective parties, allowed said application. However, learned revisional Court erroneously set aside that order. He contended that when amount of cheque is Rs.86,71,850/-, it is for the respondent herein to prove that he has supplied goods to petitioner herein of such a huge amount. 3. Learned counsel for respondent would submit that it is not the case that respondent filed an application under Section 138 of the Act of 1881 stating that respondent extended hand-loan of Rs.86,71,850/-, but the application was filed pleading therein 3 that respondent supplied fly-ash to petitioner of said value. Fly ash is tax free good. Further, in the proceeding of criminal nature under Section 138 of the Act of 1881 respondent could not be forced to submit any document on an application under Section 91 CrPC. In support of his submission he placed reliance upon decision in case of D.K. Chandel vs. Wockhardt Ltd. reported in (2020) 13 SCC 471. 4. I have heard learned counsel for the respective parties and perused documents annexed along with petition. 5. Filing of an application under Section 138 of the Act of 1881 is filed against dishonour of cheque of Rs.86,71,850/- issued towards payment of supply of fly-ash is not disputed by petitioner. It is also not in dispute that cheque was issued by the petitioner herein in favour of respondent. During course of arguments, learned counsel for petitioner made submission that blank cheque was issued and purchase of fly ash was of Rs.1,00,000/- only. In the above facts of the case where application is filed for recovery of cheque amount, which is against supply of goods, in the opinion of this Court, learned Magistrate erred in allowing application filed under Section 91 of CrPC for placing on record bank statement, income tax return and cash book. 6. Under Section138 of the Act of 1881, there is a presumption in favour of holder of cheque unless it is proved contrary. 4 Hon’ble Supreme Court in case of D.K. Chandel (supra) has observed that production of account books /cash book may be relevant in civil Court but may not so in criminal case filed under Section138 of the Act of 1881 and observed thus:- “7.As held by the Trial Court as well as by the High Court that the cheque was issued towards the amount due and payable by the appellant for purchase of pesticides. As rightly observed by the High Court production of the account books/cash book may be relevant in the civil court; but may not be so in the criminal case filed under Section 138 of the N.I. Act. This is because of the presumption raised in favour of the holder of the cheque. In view of the concurrent findings recorded by the Trial Court as well as by the High Court we do not see any ground warranting interference with the conviction of the appellant under Section 138 of the N.I.Act.” 7. In the case of John K Abraham vs Simon C Abraham and another, reported in (2014) 2 SCC 236 Hon’ble Supreme Court has held that in order to draw presumption under Section 139 of the Act of 1881 the complainant is required to discharge his initial burden. 8. Hence, it is for the complainant to decide that in what manner he would like to prove his case. Accused cannot direct the complainant to act in a particular manner and he has to stand on his own legs to prove the case. Further, whether respondent has rightly paid the income tax or not is the matter which is to be considered by Income Tax Department and 5 respondent can always proof the availability of required funds by leading evidence. 9. In case of Rohitbhai Jivanlal Patel vs State of Gujarat, reported in (2019) Supreme (SC) 300 Hon’ble Supreme Court has observed that in case of 138 Negotiable Instruments Act, account book / cash book etc. are not relevant. 10. In view of above circumstances where claim of respondent herein/ complainant before the learned Magistrate is that cheque was issued against supply of fly ash by petitioner herein, and further considering the decisions of Hon’ble Supreme Court, as discussed above, I do not find any infirmity or perversity in the order of learned revisional Court allowing revision. 11.The petition being sans merit is liable to be and is hereby dismissed. Sd/- (Parth Prateem Sahu) Judge roshan/-