Jeevesh Sabharwal & Anr. v. Maharaj Krishen Pandita

1. This petition has been filed challenging the order dated 24.11.2023 (hereinafter referred to as the ‘Impugned Order’) passed by the learned Metropolitan Magistrate (NI Act) - 03, Patiala House Courts, New Delhi (in short, ‘MM’) in CT Case No.10250/2019, titled as Maharaj Krishen Pandita v. Concept Horizon Infra Pvt. Ltd. & Ors..

2. By the Impugned Order, the learned MM has been pleased to dismiss the application filed by the petitioners herein under Section 91 of the Code of Criminal Procedure, 1973 (in short, ‘CrPC’) seeking a direction to the respondent to produce certain documents.

3. The above Complaint Case has been filed by the respondent herein under Sections 138/141/142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’), contending therein that the respondent alongwith his wife had invested in the company namely ‘M/s Premier Information Technology Parks Pvt. Ltd.’ by way of an agreement dated 26.10.2015, by booking an area specified for a banquet, measuring 460 Sq. Ft., at the basic sale price of Rs. 5500/per Sq. Ft. in the project developed by the said company.

4. It is averred in the Complaint that by way of said agreement, the company, through its Director had issued 24 post dated cheques towards the monthly interest at the rate of 1% per month besides three advance cheques of refund of Rs.16,86,667/-towards the principle, Rs.70,840/-towards service tax and Rs.2,42,880/- towards premium. The said cheques were, however, returned back by the Bank upon presentation being dishonoured for ‘insufficient funds’. On presentation again, they were again returned back unpaid for the same reason.

5. During the cross-examination of the respondent, the respondent further stated as under: “....lt is correct that the company was introduced to me by my financial advisors namely 'Karvy'. This product of buy back investment option was introduced to me by Karvy. I do not know their complete details but they are a very famous company. The product details were explained to my by Karvy and some officials from the accused company. It is a matter of record as to whether I have mentioned details of the company Karvy or details of said officials of accused company in my complaint or affidavit. (Vol. The Karvy was not delinquent in my case)”.

6. The learned counsel for the petitioners submits that the application was filed by the petitioners seeking production of the documents in relation to the alleged advice received by the respondent from ‘M/s Karvy Realty India Ltd.’. The documents sought by the petitioners in their application before the learned MM are as under: “i. All the correspondence between the Complainant and M/s Karvy Realty India Ltd., which are available with the Complainant; ii. All information relating to the contacts of the Accused No. 1 company, CHIPL, and M/s Karvy that were available with the Complainant. iii. All email correspondences between the Complainant and representatives of the Accused No. 1 company/ the Accused No.1 Company itself.”

7. He submits that these documents would be relevant for the proper adjudication of the complaint case filed by the respondent. He submits that, in fact, the petitioners have been wrongly implicated in the case and the main accused, who has perpetrated the fraud, has been granted interim protection in a petition filed by him before this Court. He further submits that under Section 91 of the CrPC, these documents would be necessary and desirable for the purpose of trial and therefore, production thereof was rightly sought before the learned MM. In support, he also placed reliance on the judgment of this Court in Sanjeev Narula v. Woodcraft Furnishers, 2023 SCC OnLine Del

4381.

8. I have considered the submissions made by the learned counsel for the petitioners, however, find no merits in the same.

9. As is evident from the reading of the complaint, the complaint is in relation to the dishonour of three cheques given by the company under the agreement executed by the company with the respondent. On whose advice and why the respondent chose to enter into the said agreement is not relevant for the adjudication of the issue that is before the learned Trial Court. The learned MM has therefore rightly observed as under: “In the considered opinion of this court, documents sought by the accused are not necessary for the effective cross-examination of complainant and for just decision of the case in the light of the defence taken by the accused no.2 and 4 in notice u/s 251 Cr.PC. Moreover, the court cannot order a fishing and roving inquiry. No specific documents have been mentioned in the application which are required to be produced before the Court. In view of the above discussion, the application u/s 91 Cr.P.C seeking production of certain documents filed on behalf of accused nos.[2] & 4 is hereby dismissed.”

10. Section 91 of Cr. P.C. is read as under:

11. The documents, production of which is sought by the petitioners, are neither necessary nor required for the proper adjudication of the complaint case filed by the respondent herein.

12. In Sanjeev Narula (supra), the order was passed by the consent of the respondent therein. Therefore, the said judgment would also have no application in the facts of the present case.