1. By way of these petitions filed under Articles 226 and 227 of the Constitution of India and under the provisions of Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (`BNSS' for short), the petitioner in each petition is challenging the order passed by the learned Additional Chief Judicial Magistrate, Dholka, Ahmedabad Rural below the application filed under Section 91 of the Code of Criminal Procedure (`Code' for short), for production of documents, was rejected.

2. As the facts and the point of law involved in these petitions are common and the arguments advanced by Page 2 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined the learned advocates is also common, the petitions are disposed of by this common judgment, with the consent of learned advocates for the parties.

3. For the sake of convenience, Special Criminal Application No.11447 of 2024 is taken as the lead matter and the observations and findings made in this matter will be followed in rest of the petitions.

4. The brief facts leading to filing of this petition are such that the petitioner herein is the original accused and the respondent no.2 is the original complainant. The complainant filed the Criminal Case No.1787 of 2023 before the learned Additional Chief Judicial Magistrate, Dholka, Ahmedabad (Rural) for the offence under Section 138 of the Negotiable Instruments Act (` NI Act ' for short). The documentary evidence list was produced by the complainant and the complainant had also filed examination-in-chief at Exh.5. The advocate for the accused also cross-examined the witnesses of the complainant-bank. Thereafter, the application was preferred under Section 91 of the Code for production of documents. The said application was rejected. Hence, this petition.

5. Heard learned advocates for the parties. 5.1 Learned advocate Mr.Bharda for learned advocate Mr.Mehta for the petitioner has submitted that the loan agreement specifying the rate of interest is not produced in Page 3 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined all the complaints. In the cross-examination, the witness of the complainant bank has admitted that the rate of interest is decided by the board of directors before passing a resolution, however, the complainant bank has not produced on record the resolution specifying the rate of interest and therefore, the application was filed for production of documents. He submitted that it is the defence of the petitioner that more rate of interest is being charged by the bank beyond the guidelines of Reserve Bank of India and if the bank is directed to produce on record the resolution which is in the exclusive custody of the bank, then there would be no prejudice to the bank. He, therefore, submitted that these petitions are required to be allowed and the application filed under Section 91 of the Code is required to be allowed.

5.2 In support of his submissions, learned advocate for the petitioner has relied on the following citations:

6. Per contra, learned APP for respondent-state has submitted that the learned trial Court has passed the Page 4 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined impugned order which is just and proper and no interference is called for by this Court. He, therefore, submitted that these petitions be dismissed.

6.1 Learned advocate Mr.Dave for the respondent no.2- complainant has submitted that the defence has not asked the witness about the existence of such document; that the statement of account is produced with the complaint; that the rate of interest of 14% has been intimated and written in the documents between the parties; that the Prime Lending Rate is fixed by the RBI and it is a public document and therefore the defence cannot compel the production of such documents; that the complainant filed about 73 such cases and all those are defended by the same advocate; that identical applications are filed in each matter and it shows that this is a delay tactics. He submitted that in all the cases, the further statement is recorded and no such prayer has been advanced; that the statutory presumption under Section 138 of the NI Act is clear and therefore the defence has to lead rebuttal evidence and cannot compel the complainant to produce the documents that it may desire. He submitted that if the petitioner is aggrieved with the order under challenge, he could have preferred revision application before the Sessions Court instead of invoking this special jurisdiction of this Court. He, therefore, submitted that there Page 5 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined is no illegality or perversity in the impugned order and therefore these petitions be dismissed. 6.2 In support of his submissions, learned advocate for the respondent no.2 has relied on the following citations:

7. I have heard the learned advocates for the parties and perused the material produced on record.

8. Section 91 of the Code of Criminal Procedure, 1973 reads as:

8.1 The language of Section 91 of the Code would, no doubt indicate the width of the powers to be unlimited but the in-built limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object.

8.2 Further, Section 91 of the Code does not confer absolute right on accused. Where the document has no relevance on the case in hand, nor it is desirable for the Page 7 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined Court to summon, the Court shall reject the application filed under Section 91 . Power of Court under Section 91 of the Code of Criminal Procedure, 1973 for summoning and production of documents is one of the absolute discretion. The only condition for exercise of such discretion is that the Court must be of the opinion that the production of document is necessary or desirable. The jurisdiction under Section 91 of the Code when invoked by accused, the necessity and desirability would have to be seen by the Court in the context of the purpose - investigation, inquiry, trial or other proceedings under the Code.

8.3 Keeping the above in mind, the ingredients which are required to be satisfied in the application under Section 91 of the Code of Criminal Procedure, 1973 made by any person/accused are that (i) It is the discretionary powers of the Court. (ii) There must be satisfaction for the Court to call for the documents. (iii) The Court should feel that the said documents are necessary for a just decision. (iv) The accused cannot compel the Court to summon for the documents. (v) It is not prerogative of the accused. (vi) The documents, which are called for, should be with the Court / Officer-in-charge. (vii) The documents which are called for, are relevant for the trial. (viii) The documents, which are called for, are the part of the prosecution. (ix) The Page 8 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined prosecution has relied on those documents which the accused are asked for.

8.4 Now, on perusal of the case on hand, when such application is made under Section 91 of the Code for production of such document, the applicant has to declare that such document is in existence or not? The learned trial Court, in the impugned order, has also considered that the petitioner has nowhere in the application has stated so. The learned trial Court has also observed that the transaction in question is regarding the loan and during the cross- examination of the complainant, the defence has asked the question regarding the loan transaction and the policy of fixing rate of interest by the bank and also asked the question that such document is not produced on record by the bank. The answer to the question was that the interest is charged as per the rules and regulations and as per the policy and the direction given by the RBI, the board of directors fix the rate of interest. Whether such document was in existence or not was not asked at that point of time and such document is now asked to be produced by the petitioner by way of application under Section 91 of the Code, which is not accepted by the learned trial Court and the learned trial Court has rejected the application on that ground. The learned trial Court has also found that such application is Page 9 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined vexatious and is filed with a view to delay the proceeding of the trial.

8.5 As regards the judgments relied on by the learned advocate for the petitioner, there cannot be any dispute with regard to the observations made therein that the concept of fair trial is required to be seen.

8.6 However, at the same point of time, the judgment in the case of Indian Bank Association and Others (supra), is required to be considered as the said proceedings are arising under Section 138 of the NI Act, wherein all the Courts are directed to proceed with the matters and expedite the cases as early as possible and it is observed in paragraphs 20 and 21 as under:

chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."

8.7 The cases of Bhikubhai Anakbhai Bayal (supra), Patel Jayantilal Mafatlal (supra) and Patel Jayantilal Page 12 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined Mafatlal (supra) pertain to Section 138 of the NI Act. In the case of Patel Jayantilal Mafatlal (supra), this Court has held in paragraph nos.9 and 10 as under:

"9. Similarly, in the case of Bhikubhai Anakbhai Bayal vs. State of Gujarat (supra), this Court held that the accused is neither entitled to seek production nor entitled to produce the documents in his possession before the stage of defence is reached. In the said decision , this Court relied upon the decision in the case of State of Orissa (supra). In view of this proposition of law, it is clear that the accused has no right for production of documents till he enters his defence. The language of Section 91 of the Code indicates that whenever any court considers that production of any document is necessary or desirable for the purpose of any investigation or inquiry or trial or other proceedings under the Code, such court may issue summons. Therefore, in order to issue summons for production of documents, the Court is required to see that the document is necessary and desirable for the purpose of trial. Therefore, accused could move the Court for production of documents at the appropriate stage and the Court after considering necessity and desirability could issue summons for production of documents. In the instant case, the respondent-accused sought production of documents for cross examination of the witness. It appears that the respondent-accused did not give reply to the notice. Hence, the ground given for production Page 13 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined is not convincing. Therefore, the learned Metropolitan Magistrate was justified in rejecting the application, but lower revisional Court committed error in passing the impugned order.

10. In view of the above, as the recording of evidence for the complainant is in progress, the respondent-accused could not claim production of the documents. This Court has not gone into the merits of the application as to whether the documents are necessary or desirable for the purpose of trial as it is likely to cause prejudice to either side, but at this stage, the respondent is not entitled for the relief claimed. Therefore, the impugned order is required to be set aside."

8.8 In the case of Bhikubhai Anakbhai Bayal (supra), it is held by this Court in paragraph no.7.3 as under:

9. Considering all these judgments and considering the findings given by the learned trial Court, it can be said that the provisions of Section 91 of the Code, powers are conferred on the learned trial Court which are discretionary in nature and the Court can direct the authority concerned like Inspector of police station or any other authority to produce any document or other things which are necessary or desirable for the purpose of any investigation, inquiry, trial or other proceedings in the Court. However, in the case on hand, the learned trial Court has given reasons for rejecting the application under Section 91 of the Code as the Court found that the said documents are not necessary for the trial.

10. At this stage, it will not be out of way to mention that it has been observed that in matters where the offence Page 16 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025 NEUTRAL CITATION R/SCR.A/11447/2024 JUDGMENT DATED: 04/02/2025 undefined under Section 138 of the NI Act is invoked, the accused files some or other application in the midst of the trial, with a view to delay the proceedings and frustrate the purpose of the Act itself. In the present case also, it seems that the complainant has filed 73 cases and identical applications are filed in all the matters by the accused and as judgment of conviction is passed in two cases out of the 73 cases, it seems that the applications are filed in some of the matters to delay the trial.

11. In view of the above discussion, all these petitions are required to be dismissed as the findings of the learned trial Court are not found to be perverse or illegal. On the contrary, the application filed by the petitioner is vexatious and filed at the verge of recording of further statement.

Accordingly, all these petitions are dismissed.

(SANDEEP N. BHATT,J) SRILATHA Page 17 of 17 Uploaded by U. SRILATHA(HC00185) on Thu Feb 06 2025 Downloaded on : Thu Feb 06 23:50:09 IST 2025