SBCRLMP No.1589/10. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CRIMINAL MISC.PETITION NO.1589/2010. Yogesh Singh Vs. Dinesh Singh @ Dinesh Kumar Singh Date of order : 2/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vijay Kumar Sharma for petitioner. Ms. Madhavi Goswami for the complainant-respondent. ****** BY THE COURT:- An application for early listing of the petition has been filed. The application is allowed. The matter is being decided. The instant criminal misc.petition under Section 482 Cr.P.C. has been filed challenging the order passed by learned Judicial Magistrate (NI Act cases) No.5, Jaipur City, Jaipur dated 30/3/2010 by which, application filed by the accused-petitioner u/S.91 Cr.P.C. praying that order should be passed for summoning income tax returns of witness Surendra Singh, has been rejected. Hence, this petition. Learned counsel for petitioner has argued that learned trial court has misconstrued and misplaced the provisions of Section 91 Cr.P.C. Learned trial court was wholly unjustified in rejecting application of the petitioner on the premise that such a request should have been made by the petitioner when he earlier filed application u/S.91 Cr.P.C. and that SBCRLMP No.1589/10. 2 since petitioner produced Surendra Singh as his own witness, it was for him to have simultaneously requested for production of those documents. At that very moment, observation made by the learned trial court that petitioner has filed such application only for the purpose of delaying proceedings, is uncalled for. It is contended that application has been made only after the said witness Surendra Singh has been hostiled in the interest of accused-petitioner saying that he had lented this loan of Rs.1.5 lacs to the complainant and that he was also an income tax payee as his income is Rs.1 lac per annum. The petition be therefore allowed. Learned counsel for the complainant- respondent has opposed the petition and submitted that the application has been filed only with a view to delaying the proceedings. Matter before the trial court is getting delayed for one reason or the other. It is submitted that when Surendra Singh was produced by the accused-petitioner, it was for him to ensure that he produced his account books of the income tax return and that no such prayer was made in the application earlier filed by the petitioner U/S.91 Cr.P.C. even during the pendency of this petition before this Court. Learned counsel cited the judgment of Madras High Court to argue that petitioner has right to rebut the presumption u/S.139 Cr.P.C. and in that connection he should require account books in possession of the complainant. The petition be SBCRLMP No.1589/10. 3 therefore dismissed. Upon hearing learned counsel for the parties and perusing the material available on record, I find that accused-petitioner does not dispute that Surendra Singh was produced by him as his own witness and that he earlier filed application under Section 91 Cr.P.C., which was allowed by the trial court. Neither he required Surendra Singh nor Surendra Singh produced those documents at the time when the statements were recorded. No such request was made by the petitioner in the earlier application filed u/S.91 Cr.P.C. Contention that since Surendra Singh has given statement that he lented Rs.1.5 lacs to the complainant, therefore, he should be called to produce his account books and income tax return, is not tenable. Cited judgment of Madras High Court does not apply to the facts of the instant case because in that case, court observed that the accused has right of rebuttal of presumption u/S.139 Cr.P.C. and in that connection he require account books in possession of the complainant to be produced. The loan of Rs.1.5 lacs even if borrowed by the complainant from Surendra Singh and even if that amount has not been shown in the income tax return by both of them, that by itself may not prove existing liability of the accused- petitioner qua complainant, although independently, it may be an irregularity attracting provisions of the Income-Tax Act, 1961. As far as however, liability of the petitioner towards complainant is concerned, same SBCRLMP No.1589/10. 4 will have to be judged on the basis of evidence relates to transactions and dealing between two of them only. Learned trial court, in my view, was justified in rejecting the application for the reasons that were elaborately mentioned in the impugned order. This petition being devoid of merit is accordingly dismissed. (MOHAMMAD RAFIQ), J. anil SBCRLMP No.1589/10. 5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CRIMINAL MISC.STAY APPLICATION NO.1454/2010. in S.B. CRIMINAL MISC.PETITION NO.1589/2010. Yogesh Singh Vs. Dinesh Singh @ Dinesh Kumar Singh Date of order : 2/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vijay Kumar Sharma for applicant-petitioner. Ms. Madhavi Goswami for the complainant-respondent. ****** BY THE COURT:- Consequent upon dismissal of the main petition, this stay application does not survive and the same is accordingly dismissed. (MOHAMMAD RAFIQ), J. anil