ORDER
S.C. Vyas, J.
1. The order passed by Additional Sessions Judge, Bhanpura, Mandsaur in Cr.R. No. 96/2006 on dated 11-5-2006 whereby order dated 8-4-2006 passed by Judicial Magistrate First Class, Bhanpura in Criminal Complaint No. 13/2005 was confirmed, is under challenged in this petition presented by the petitioner under Section 482 of Criminal Procedure Code, requesting to invoke the extraordinary jurisdiction of this Court and to quash both these orders.
2. The present petitioner is facing prosecution under Section 138 of Negotiable Instruments Act before learned JMFC, Bhanpura, on the allegation that two cheques of Rs. 50,000/- and Rs. 75,000/- respectively issued by the present petitioner herein were dishonoured by the Bank due to insufficiency of funds and the amount was not paid by him despite demand. During Trial Prosecution witnesses were examined thereafter, petitioner herein entered in his defence and when the matter was at the stage of advancing final arguments then an application under Section 91 of Cr.PC was filed, wherein a request was made, summon FIR lodged by the complainant (respondent herein) regarding theft of his GPF amount as well as record of the GPF account of the complainant be called. Another application under Section 311, Cr.PC was filed for recalling complainant. These two applications Annexures P-3 and P-4 were dismissed by the Trial Court and the criminal revision filed by the petitioner herein before Additional Sessions Judge also failed, therefore, he preferred present petition.
3. After having heard learned Counsel for both the parties and having gone through the impugned order passed by JMFC as well as Additional Sessions Judge in Cr.R. No. 96/2006 on dated 11-5-2006, this Court is of the opinion that this petition has got no force and is liable to be dismissed.
4. learned Counsel for the petitioner Shri Manish Manana very vehemently argued that the complainant Sanat Kumar (P.W. 2) has deposed before Trial Court that he had withdrawn certain amount from his GPF account and was available with him. This was the reply, which has come during cross-examination of the complainant.
5. learned Counsel for the petitioner submitted that later on the same complainant had lodged a report with the police that the amount, which was withdrawn by him from his GPF account was stolen from his house, and, therefore, the documents regarding withdrawal from GPF amount and First Information Report regarding theft of that account become relevant in this case and Trial Court committed an error in disallowing the application filed under Section 91, Cr.PC.
6. learned Counsel for the petitioner heavily relied on the judgment of this Court passed in the case of S.K. Singhal v. State of Madhya Pradesh 1997 Cr.LJ 3145.
7. Per contra, learned Counsel for the respondent Smt. Madhulika Nahar submitted that the petitioner herein was having full opportunity to adduce any evidence during the stage of defence evidence and when the case has passed that stage and the matter was fixed for final arguments then at that stage applications were deliberately moved to create hurdles in the progress of the trial and to protract the same by causing delay.
8. Copies of the proceedings, which have been filed by the petitioner himself in this petition and the Paragraph No. 7 of the impugned order passed by JMFC shows that the case was fixed for recording defence evidence from 21-10-2005 till 17-3-2006 continuously. During that stage no prayer for calling any document or for recalling complainant for further cross-examination was made by the complainant, when the stage of recording evidence had passed, and the matter was fixed for final arguments, then abruptly all of a sudden on 22-3-2006, at the stage of addressing the Court finally petitioner moved applications under Section 91, Cr.PC and Section 311 of the Cr.PC respectively.
9. Under Section 139 of the Negotiable Instruments Act a presumption is drawn against the drawer and in favour of the holder that unless the contrary is proved, that the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or other liability, and, therefore, the Court has to presume unless the contrary was proved, that the holder of cheque received the cheque for the discharge, in whole or in part of a debt or liability. Of course this presumption is rebuttable and a burden of proving that the cheque had not been issued for a debt or liability is on the accused. The accused had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The accused, not having led any evidence could not be said to have discharged the burden cast on him. Observations made by Hon’ble Supreme Court in the case of K.N. Beena v. Muniyappan AIR 2001 SC 2895 can be fruitfully referred in this regard, and, therefore, in this present case the burden of proving that the cheques in question have not been issued for a debt or liability is on the petitioner herein. How far he can discharge this burden, is a matter to be decided on merits after full trial by Trial Court, but the proceedings of the case clearly shows that the stage of recording the evidence had already passed when applications were moved by the present petitioner. The documents which he was trying to call after closer of evidence of both parties were necessary or not for the just decisions of this case, was to be examined by the Trial Court, particularly keeping in mind the stage of the trial. Learned Additional sessions Judge has examined this aspect and gave a finding that the record of GPF was not relevant for the purpose of the present trial and other facts were also in the knowledge of the present petitioner and, therefore, necessary questions could have been asked to the complainant, while he was being examined during trial.
10. The facts of the case of S.K. Singhal v. State of M.P. (supra), which have been relied by the learned Counsel for the petitioner were totally different. In that case, one witness (complainant) was being examined by the Court and for the purpose of effective cross-examination certain documents were required by the defence, which were in the possession of that witness and, therefore, prayer was made for calling all those documents and to produce in the Court through defence witness, so that witness (complainant), who was to be examined could be effectively cross-examined and could be confronted with those documents through his cross-examination. In such a situation, this Court in Paragraph 5 held as under:
Cross-examination is a very effective weapon available to the accused. By effective cross-examination the accused can unveil the truth before the Court. For effective cross-examination in some cases the witnesses are required to be confronted with the documents with which witnesses are having a nexus. A witness may not be author of a document or documents but if during the discharge of his official duty, if he was expected to come across such document/documents, such witness can be asked questions in cross-examination in respect of such document or documents. The witness may disclose the information which he may have in respect of such document or documents or if he does not have any concerned with such document or documents, he may state to that effect before the Court in his deposition. If such witness happens to be a signatory over such document/s in those cases also he can be asked questions in respect of such document or documents and he can be confronted with such documents in the cross-examination if it is necessary for the purpose of unfolding the truth. A prosecution witness who is coming to the Court with a particular story in support of the prosecution can be concerned in the cross-examination by a document of which he is the author or on which he has signed or of which he had or has the knowledge. After all it is the duty of the Court to find out the truth and Counsel for the prosecution and defence are duty bound to assist the Court in search of the truth in the trial. Therefore, it is for the Court to justify its order by proper reasons when it is rejecting the prayer made by the accused for calling such document enabling him to cross-examine the prosecution witness effectively for defending him properly. Without proper enquiry the Court is not expected to reject the prayer of such an accused without mentioning sufficient and reasonable grounds.
11. In the said judgment this Court has also observed in Paragraph 6 that–
it is true that accused cannot be permitted to delay or protract the trial, however, that does not mean that the doors of his defence can be closed and sealed at initial stage of the trial. Atleast, a fair and reasonable opportunity has to be given to the accused for cross-examining the prosecution witness sufficient to defend himself.
12. As observed by this Court in the above referred case, as and when the Court feels that the accused is trying to delay or protract the trial then in such situation applications filed under Section 91 of the Cr.PC or Section 311 of the Cr.PC can always be dismissed as happened in the present case. It is apparent from the orders passed by the two Courts below that at fag end of the trial when the case was at the stage of advancing final arguments then the petitioner herein, who is accused in that case had tried to delay or protract the trial by moving an application for calling certain documents, which are not having much bearing on the matter and then to recall the complainant for cross-examination on whom effective cross-examination was already done.
13. After thoroughly examining the impugned orders and the proceedings of the Trial Court and the contents of the applications filed by the petitioner herein before the Trial Court this Court of the considered view that these applications were moved just to cause delay in the proceedings of the trial and, therefore, have rightly been dismissed by the Trial Court.
14. Considering over all circumstances of the case, it does not appear to be a case of failure of justice or a case in which interference can be made invoking the extra-ordinary jurisdiction of this Court, therefore, this application has no merit and is dismissed.