1 IN THE HIGH COURT OF JUD ICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL W.P NO. 456 of 2009 Rajiv s/o Kamalkishor Biyani, a/a 56 years, Occ: business, Proprietor of Utkarsha Pratishthan, Gorakshan Road, Akola, Tq. and Distt.Akola (Police Station Civil Lines, Akola) … Petitioner/ Org. Complainant. Versus 1. Jaganmal s/o Pamandas Chandwani, adult, Occ.- business, Proprietor of Deepa Dress, Washim Stand, Akola, Tq. & Distt. Akola, (Original Accused) 2. State of Maharashtra, through P.S.O. Civil Lines, Akola Tq. & Distt. Akola. … … Respondents. ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. C.A. Joshi, learned advocate for Petitioner. Mr. A.S. Chandurkar learned counsel for respondent no.1. APP for Respondent no. 2 CORAM : A.B. CHAUDHARI, J. DATED : 29th March, 2010. ORAL JUDGMENT 1. Heard. Rule. Rule returnable forthwith. Heard finally by consent of learned Counsel for the rival parties. 2. Aggrieved by the order dated 17.6.2009 below Exh.66 passed by the J.M.F.C. Court No. 8, Akola in 2 Criminal Case no. 8211 of 2004 allowing the application made by the accused persons for compelling the complainant to produce on record of the court ledger book, cash book and journal book for the year 2001 to 2005, the present writ petition has been filed by the original complainant. 3. In support of Writ Petition, Mr. Joshi, the learned counsel for the petitioner complainant, argued that the petitioner/complainant does not want to produce those documents in his criminal case and therefore he cannot be compelled to produce the same before the court as it is his private complaint case and would stand or fell on its own legs. He further submits that the accused persons are merely trying to build up a false defence by insisting upon production of those documents and therefore the trial court judge erred in asking the complainant to produce all those documents. The trial court judge thus has acted in violation of the basic principles in the matter of criminal case as to the burden of proof. He, therefore, prayed for quashing the impugned order. 4. Per contra, Mr. Chandurkar, learned counsel appearing for the respondent no.1, vehemently opposed the application and argued that the impugned order is a discretionary order made by the trial court with which no interference can be made in its revisional jurisdiction 3 by this court. He then argued that the petitioner/complainant has not shown any prejudices as to why he is not willing to produce the documents, particularly because in the cross-examination he avoided answering to the questions pertaining to those documents on the ground that unless he sees those documents, he will not be able to answer and therefore it is essential to have the documents before the court in order to support the defence. 5. Having heard the learned counsel for rival parties and having gone through the record, at the outset, I find that it is a private complaint under section 138 of the Negotiable Instruments Act filed by the petitioner and sole burden of proving the case to the hilt is on the petitioner/complainant. In fact, that is an initial burden which the petitioner/complainant is liable to discharge. It is well settled that it is fundamental right of the accused to remain silent throughout the trial. In this background, therefore, whether the complainant proves his case or not is matter within his choice and the court cannot compel the complainant to produce the documents required by the accused in order that the complainant proves his case before the court. It is for the complainant to take care of his case and produce such evidence which in the opinion of the complainant should result into conviction. Similarly, the court need not call upon the complainant to produce the documents against his will in order that the accused 4 persons prove their defence before the court. That is not necessary. Since the burden of proof is on the complainant to prove his case to the hilt, the court ought not to have entered into the exercise of compelling the complainant/petitioner to produce documents. Needless to say, ultimately it is for the court to draw such inferences as are permissible in the law in the facts and circumstances. Thus, according to me, there is an error of jurisdiction committed by the trial court and will have to be corrected by exercising the power of superintendence by this court. Hence, disagreeing with Mr. Chandurkar about the submission regarding discretionary order, I find that the present revision will have to be allowed. In the result, I make the following order. ORDER The impugned order made by the trial court below Exh. 66 in Cri. Case no. 8211/2004 is quashed and set aside. The trial court to proceed further in accordance with law. No order as to costs. JUDGE Hirekhan