HIGH COURT OF CHHATTISGARH. BILASPUR Wrii Petition (2271 No. 2009/2009 WRIT PETITION UNDER ARTICLB 227 OF THE PETmOHER ACCUSED PERSONS RESPONDENTS COMPLAINANT CONSTITUTION OF INDIA 1. Walraj Service Centre, Link Road, Bilaspur, fhrough Mohaotimad Arif, aged about 36 years, S/o Late Afaq Mohammad 2. Mohammad Arif, aged about 36 years, S/o Late Afaq MohaDDiinad 3. Mohammad Tariq, aged about 29 years, S/o Late Maq Mohammad, Link Road, BUaspur (CG) 4. Smt. Khalida Afaq, aged about 54 years, W/o Late Afaq Mohammad, Link Road, BUaspur (CG) AU R/o opposite to Raghuraj Singh Stadium Imlipara, Bus Stand Road, P.S. CivU Line, Distt. Bilaspur (CG) Versus Vijay Kumar Chandel, aged about 59 years, S/o late Arjun Singh Chandel, R/o Minocha Colony, P.S. CivU Line, Distt. BUaspur (CG) Shri Anand Kumar Tiwari, Adv. for fhe petitioner. Shri Amrito Das, Advocate, for the respondent. SB; HON'BLE SHRI JUSTICB N.K. AGARWAL ORDER (24-6-2009) The instant petition is dtrected against the order dated 12-1- 2009 passed in Criminal Complamt Case No. 1819/2008 by the Chief Judicial Magistrate, BUaspur and also order dated 31-3- 2009 passed by the Addl. CMef Judicial Magistrate, Bilaspur iii .fl-ff'T^ Iwi^^ Criminal Revision No. 85/2009, whereby fhe application of the petitioner for taMng documents on rccord has been rejected. 2. As per fhe petitioners, fhe respondent/complainant filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, hereinafter referred to as the Act) against the petitioners before the Court of Chief Judicial Magistrate, Bilaspur. The aforesaid case is pending adjudication aiid it has been registered as Ci'iminal Complaint Case No. 1819/2008. 3. On 22-12-2008, the petitioners ffled an application for taking documents on record in order to place beforc the Court a photocopy of fhe agi'eement dated 22-9-2005 entered into between fhe petitioners and the respondent regarding loan transaction ofRs. 50,000/- in which it is also mentioned that a Cheque No. 155051 was given to the respondent in security of the aforesaid loan of Rs. 50,000/- and also one docyment which is a copy of respondent?s statement ofaccount ofBank oflndia for the period from 25-6-2003 to 25-7-2006 showing various trainsactions between the petitioners and the respondent. As per the petitioners, the petitioners were not in possession of those documents earlier and after sincere efforts made by them, they coiild obtain the same aad so, there was a delay in filing the said documents ia the case in support of fheir defence. 4. Leamed trial Court vide order dated 12-1-2009 dismissed the application of the petitioners holding that fhe petitioners/accused persons have not said anything regarding that agreement during recording of their statements before the Court and fhe reason assigned regarding delay in filing tiiose document are not satisfactory. The revisional Court vide order dated 31-3-2009 dismissed the revision affirming fhe finding recorded by the trial Cotirt. It was further recorded by the revisional Court in para 9 of its order that on 6-9-2007, respondent Vijay Kumar Chandel has been cross-examined at length by the petitioners and not a single question has been asked regarding alleged agreement dated 22-9-2005 nor any defence has been taken by the petitioners based on the said agreement Defence witnesses Atul F^rihar, Sunil Dafta, Dev Kuiuar Verma, Mohd. Aashik and Mohd.^Tarik were examined by the petitioners iu their defence and tiiere is not even a whisper about the said docuinent sought to be filed. The matter was adjoumed from ttiiie to time for examination of defence witnesses and about 19-20 opportunities have been afforded to the petitioners for their production and finally the matter was fixed for final ai^ument and thus, it was held by the revisional Court that the application has been prefeiTed in order to delay tfoe proceedings. 5. Shri Anand Kumar Tiwari, learned counsel for the petitioners submits fhat the documents sought to be produced by the petitioners are material in nature, goes to the root of the matter and, fherefore, ought to have been allowed to be produced in the case in support of defence of the petitioners. He fuilher subniits that to take appropnate defence in a criminal case is a valuable / fundaniental right of the accused/petitioners and the documents souglit to be fUed by the petitioners would reveal that the loan ofRs. 50,000/- has been given by the respondent to fhe petitioners and in security thereof, the cheque No. 155051 dated 22-9-2005 has been issued as security to the respondent/ complainant and, therefore, the claim preferred by the respondent by way of coraplaint aaaounting to Rs. 4,90,000/N- is false. He further contended that in view of Section 243 of Cr.P.C., fhe petitioners are entitled to produce relevant document at any stage of fhe proceedings and at tihis stage, only the relevancy of the document has to be seen. He places reliance upon the judgment of fhe Supreme Court in Kalvani Baskar (Mrs.l -v- M.S. r CZP 1 tlWiiiiiaiNNigi^ Sampoornam (Mrs.) reported m (2007) 2 SCC 258 (In para 12) and in Zahira Habibulla H. Sheikh suid another -v- State of Guiarat and others reported in (2004) 4 SCC 158 (In para 24, 36, 39 and 55). As per Shri Tiwari, the original copy of the document is with fhe respondent. 6. Per contra, Shri Amrito Das, leamed counsel appearing for the respondent submits that the petitioners have not come up with clean hands before fhis Court, inasmuch as the petition has been filed concealing fhe material documents, even fhe application for taking docuinent on record filed by the petitiouers and also fhe copy of the complaint under Section 138 of the Act has not been filed before this Court by the petitioners. He further contended that there is a series of money transaction took place between the parties and fhe document sought to be filed is apparently a forged document sought to be filed m order to protract the trial. The conduct of the petitioners is not fair. Both the Courts below have dismissed the application by assigning sound reasons therefor aiid, therefore, the petition f51ed under Article 227 of the Constitution of India by the petitioners is liable to be dismissed. Reliance is placed tn fhe judgment of Rajasthan High Court in Babu Khan -v- Surcwan Maheshwari reported in 2005 (2) DCR 467. 7. I have heard leamed counsel for the parties, pei-used the record and also gone throu^i the judgments cited by tlie leamed counsel for the parties. 8. AbareperusaloftheorderofrevisionalCourt (Annexure P- 2) would reveal fhat the complaint under Section 138 of the Act has been filed by the respondent pursuant to dishonour of Cheque No. 005526 amountmg to Rs. 4,90,000/- dated 17-8- 2006. It is also not in dispute between the parties that several money transactions took place betiveen them and, therefore^ the - question before fhe trial Court for determmation on application under Section 138 of fhe Act is whefher the petitioners have committed any offence in pursuance of dishonour of cheque No. 005526 dated 17-8-2006 amounting to Rs. 4,90,000/- and, therefore, the photocopy of the said agreement is not at all relevant for fhe just decision of the matter. More over, fhe question of agreement was never raised by fhe petitioners or thetr witnesses exanuned in the case and, although it was argued by Shri Tiwari that original is with the respondent but fhis fact was neither mentioned in fhe application for taking documents on record nor it was argued before fhe Court below. Therefore, bofh the Courts belbw have rightly dismissed fhe application of the petitioners in the facts situation of this case. In my considered opinion, both the Courts below have neither committed any Ulegality nor such irregularity leading to manifest injustice. The right to fair trial cannot be stretched to the extent so fhat it may lead to abuse of process of law. 9. It is weU settied principles of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of fhe Constitution of India, should refrain itself from interfering with the order passed by fhe Court below except in such cases where perversity, UlegaMty or jurisdictional error is writ large on the face of the record, which is not ia the present case. 10, In view of the above discussion, tiie petitiou is liable to be disaiissed and is hereby dismissed. Sd/- N.K. Agarwal Judge ^