1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 960/2009 Mangala Ravindrasingh Patil ..Petitioner. versus Chandrakant Ramchandra Mahajan ..Respondent. Shri P.R. Patil, advocate for petitioner Shri K.M. Suryawanshi A.P.P. for State CORAM : P.R. BORKAR, J Date : 07-11-2009 PER COURT : 1. Heard Shri P.R. Patil Advocate for applicant. 2. Writ petition is filed challenging the order passed by learned Sessions Judge, Jalgaon in Cri. Revision Application No. 213/2006 decided on 27-02-2009 whereby the revision petition filed by present petition was dismissed. The revision was directed against the order passed by the Judicial Magistrate (F.C.), Jalgaon in S.C.C. No. 3201/2007 whereby application Ex. no.30 filed by present petitioner who was original accused for calling upon 2 complainant to produced certain documents was rejected. 3. The present respondent no. 1 has filed complaint u/s 138 of Negotiable Instruments Act against present petitioner stating that, he was having Agency of drip Irrigation Sets and Soler Agency under name ‘Gurjar Enterprises’. On 24-10-2001 the accused has purchased a drip Irrigation set and issued the cheque of Rs.4,51,400/- on 17-03-2003 and same was dis-honoured. In spite of notice the amount was not paid. 4. It is the case of petitioner that she has not purchased any drip irrigation set from respondent no.1. Shri P.R. Patil, Advocate has submitted before this court that, since there is no transaction of purchase, there is no document on record and therefore, the petitioner had filed application Ex. 30 calling upon the respondent no.1 / complainant to produce documents relating to the sale transaction. The trial court came to the conclusion that, it was not necessary to call for such documents u/s 91 of Cr.P.C.. As per the ruling cited, sec. 91 could be invoked only at the stage when defence of the accused is open. The case is summary and procedure prescribed under Chapter XX of Cr.P.C. in the revision as against dismissal of application Ex. 30 and the Sessions Judge has come to the conclusion that it was not stage when accused can call upon production of certain document by making application u/s 91 of Cr.P.C.. 3 5. The case of State of Orissa v/s Debendra Nath Padhi 2005(1) Crimes page 1 which is referred by the court, has different facts. It was warrant trial case and stage was of framing of charge. At that time the question raised was whether the document produced by accused could be considered and it was held that while framing charge, material produced by the prosecution alone is to be considered. The right of accused to seek discharge by filing unimpeachable and unassailable material of sterling quality and invocation of Article 21 of Constitution. It was said that, at the stage of framing of charge, defence of the accused could not be put forth. Here, in this case it is summary case. In my considered opinion when the stage is of evidence by complainant in summary case, it is discretion of the complainant to decide what evidence he or she should file. However, remedy to the accused is either in cross examination to call upon the complainant to produce certain document to substantiate his say and ask the court to draw an adverse inference if those documents are not produced. Secondly if there are certain documents which complainant has not produced though in his possession, recourse may be had to sec. 66 of the Evidence Act. If in spite of having certain document he or she withholds them, adverse inference can be drawn. In my considered opinion at the stage at which trial is pending, no interference in discretion used by trial court is necessary. The petitioner / accused may exercise his 4 options available in law at proper stage. Petition dismissed with liberty to file appropriate application before trial court. (P.R. BORKAR, J) tsk/criwp960.09