( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 931 OF 2009 Shri Kailash Dinkar Wani .. Petitioner Versus Shri Agrasen Urban Co.Op. Cr. Society .. Respondents Ltd., and anr. Miss Sadaf Kazi h/f. Shri J.R. Shaikh, Advocate for the petitioner. Shri A.I. Deshmukh, Advocate for respondent No.1 Mrs. B.R. Khekale, A.P.P. for respondent No.2/State. CORAM : P.R. BORKAR,J. DATED : 10.12.2009 P.C. :- 1. Heard Adv. Miss Sadaf Kazi h/f. Adv. Shri J.R. Shaikh for the petitioner, Shri A.I. Deshmukh for respondent No.1 and A.P.P. Mrs. B.R. Khekale for respondent No.2/State. 2. This writ petition is filed by the original accused person whose application for issuing summons under Section 91 of the Cr.P.C., calling upon the complainant to produce certain documents was dismissed by 7th Jt. Judicial Magistrate, First, Class, Jalgaon, on 12.02.2009, vide order below Exh. 31 in S.C.C. No. 2385 of 2006. Said order was ( 2 ) challenged in Criminal Revision Application No. 59 of 2009, but same came to be dismissed by the Sessions Court on 10.07.2009. 3. By application Exh.39, the applicant/petitioner who was accused in the complaint filed under Section 138 of the Negotiable Instruments Act has stated that the complainant’s witness was to be cross-examined and therefore the documents as mentioned in para 5 are required and therefore summons be issued under Section 91 of the Cr.P.C. The learned Magistrate held that during cross-examination of the witness of the complainant, application was moved and adjournment was also sought and the matter is being delayed. The accused has every right to rebut presumption against him when he is entitled to lead evidence and therefore the Magistrate held that application under Section 91 of the Cr.P.C. cannot be entertained till stage of defence evidence. The learned Sessions Judge observed that according to the advocate for the petitioner appearing before him, production of document in custody of the complaint was necessary; but the Sessions Judge observed that he could seek production of documents only after he opens defence. He considered when documents ( 3 ) can be used during cross-examination for confronting to witness. In para 6 of his judgment it is specifically stated that the Sessions Judge specifically asked Mr. Sonwane, the advocate appearing for the petitioner as to how the complainant’s witness was being contradicted with respect to contents of the documents, which the accused wanted to be produced. It may be noted that the accused has sought production of several documents as mentioned in para 5 of the application and it is not one or two documents. On inquiry by the learned Sessions Judge, there was no reply and the learned Sessions Judge observed in para 7 and 8 of his judgment as follows :- “7. I think that the documents are sought to be produced at this stage only to make a roving inquiry and to decide what question is to be asked to the complainant’s witness in the cross- examination. Even in the judgment of this Court, on which reliance has been improperly placed by Mr. Sonwane, it is mentioned as follows: “As aforesaid, production of documents at the stage of cross- examination can be for the purpose of contradicting a particular prosecution ... ... ... ... The necessity of such documents, if any, would become apparent only if certain suggestion as to the contents thereof, or as to the availability or position of the documents, is given in the cross-examination. The ( 4 ) documents cannot be summoned in such a manner so as to enable the accused to make a roving inquiry and then to decide what question is to be asked to the complainant in the cross-examination. Since, so far, it is not clear as to in what manner, the complainant was to be confronted with the documents, the complainant was to be confronted with the documents, which were intended to be called, the production thereof, at that stage, could not be considered to be necessary.” [para 9 of the said judgment] 8. Same is the case here. Mr. Sonwane is unable to state for what purpose the witness is to be confronted with the documents, if they are called. As a matter of fact, in oral arguments, he submitted that he would need to examine the documents and then to decide what was to be asked to the witness.” 4. It is abundantly clear from para 7 and 8 quoted above that application Exh. 31 under Section 91 of the Cr.P.C. was not bona fide. The advocate for the petitioner was not in a position to satisfy the necessity of calling documents at that stage and therefore there is no merit in the petition and same deserves to be dismissed. Hence, the writ petition is summarily dismissed at the stage of admission. [P.R. BORKAR,J.] ( 5 ) snk/2009/DEC09/crwp931.09