IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT: HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1169 OF 2010 BETWEEN: Gogineni Sudhakar Rao S/o. late Appayya …. Petitioner AND Sivvati Vijay Kumar S/o. Late Pydiraju and another …. Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.1169 OF 2010 ORDER: In this revision petition, the complainant questions order dated 21-04-2010 passed by the III Metropolitan Magistrate, Visakhapatnam in Criminal M.P. No.564 of 2010 in C.C. No.788 of 2006 by which the lower Court allowed petition filed by the accused under Section 91 Cr.P.C. and summoned Income Tax Department to produce the income tax returns of the complainant relating to years 2002-2003 and 2003-2004. 2. The case, which is pending in the lower Court, is one relating to offence punishable under Section 138 of the Negotiable Instruments Act. The complainant as PW-1 stated that he disclosed the present borrowing covered by the cheque in his income tax returns. It necessitated the accused to file the present petition in the lower Court for summoning the said income tax returns. Now, the case in the lower Court is posted for defence evidence after the complainant lead his evidence and after the lower Court examined the accused under Section 313 Cr.P.C. 3. It is contended by the petitioner’s counsel that as per Section 243(2) Cr.P.C., the question of the accused applying to the Magistrate to issue any process for compelling attendance of any witness or production of any document or other thing arises only after the accused entered upon his defence and that since the accused is yet to be examined as a witness during defence evidence, it cannot be said that the accused entered upon his evidence. This contention is not sustainable in law. The phrase “entering upon his defence” connotes that the case must be posted for defence evidence during trial. It is left to the accused either to examine himself as witness or not. Without examining himself as witness, the accused is always at liberty to lead any oral or documentary evidence on his behalf. Therefore, the argument that the accused shall examine himself as witness and then only it can be said that accused has entered upon his defence, is not in accordance with law. 4. It is further contended by the petitioner’s counsel that till now the accused did not disclose his defence. The accused need not disclose his defence until arguments. The accused has got right to maintain silence till end of trial. It is a constitutional right given to an accused person. He cannot be compelled to disclose his defence by the adversary much less by the trial Court. It is only after completion of the prosecution evidence, the burden lies on the accused to prove circumstances or to explain circumstances, which are exclusively within his knowledge, under Section 106 of the Evidence Act. Therefore, contention of the petitioner’s counsel that the accused cannot apply for documents until he goes into the docks is devoid of any basis in law. 5. Having regard to evidence of the complainant as PW-1 that he disclosed the borrowing in question in his income tax returns, the accused wanted to place the said material before the Court to assess truth as well as veracity of the complainant’s evidence. The lower Court is legally justified in ordering production of income tax returns of the complainant for the relevant years by the Income Tax Department. I see no illegality or irregularity much less impropriety in the order passed by the lower court. 6. In the result, the revision petition is dismissed. __________________________ SAMUDRALA GOVINDARAJULU, J June 25, 2010 KTL