SURAJMAL Vs. BABULAL

JUDGEMENT

(1.) THIS revision has been filed by the applicant/complainant against the impugned order dated 21.5.2004 passed by the learned lower revisional Court in Cr. Rev. No. 245/2004 whereby set aside the order passed by the trial Court dismissing an application of the non-applicant/accused filed u/s 91 of the CrPC for calling certain documents which are in possession of the applicant.

(2.) THE applicant has filed a complaint u/s 138 of the Negotiable Instruments Act (for short 'the Act'). In short his case before the trial Court is that the father of the non-applicant named Mohanlal Patidar was serving in the Karneswar Cold Storage, Karnavad, Tehsil Bagli, District Dewas as Secretary. During the course of his service, Mohanlal Patidar, the father of the non-applicant Babulal committed misappropriation of Rupees twenty lakhs and for this amount executed an agreement in favour of Karneswar Cold Storage Pvt. Ltd. for repayment of this amount within certain period as mentioned in the agreement. Thereafter, the non-applicant being a son of Mohanlal issued cheques on different dates towards the payment of the amount said to have been misappropriated by his father but the same could not be honoured because of stop payment. The non-applicant, after service of summons, appeared before the trial Court and filed an application u/s 91 of CrPC whereby prayed for production of documents of accounts of Kameswar Cold Storage i.e. cash book, ledger book, bank book, balance sheet, trial balance account and statement. He has also mentioned in this application questioning about the issuance of cheque or receipt of the cheque by the applicant in his own personal name i.e. Surajmal Patidar. The non-applicant prayed for production of all these documents to cross examine the witnesses which will be adduced by the applicant and also mentioned in the application that these documents will be required in his defence.

(3.) THE learned counsel for applicant has vehementally submitted that in the agreement, the father of the applicant has admitted the misappropriation of rupees twenty lakhs and for this purpose he has already filed Auditor report alongwith the complaint. He has also submitted that as per provision u/s 139 of the Act, the burden is on the non-applicant to prove that the cheque was not issued for debt or legal liability. Therefore, these documents are not at all necessary to be called before the trial Court for his defence. He has also submitted that on the said agreement the father of the applicant has admitted the liability and the same was also filed by the applicant before the trial Court and the applicant has not denied the same.