Section 391 Cr.P.C.- Pending the appeal, he moved two applications being Crl.M.P.Nos.415 and 513 of 2012. More precisely, Crl.M.P.No.415 of 2012 is filed under Section 391 Cr.P.C to send the disputed cheque to A.P.F.S.L to ascertain the age of the ink and Crl.M.P.No.513 of 2012 is filed to summon the Income Tax Officer to cause production of the income tax returns of the compalinant for the years 2007-08, 2008-09 and 2009-10. = What is suggested to P.W.1 is that he is an income tax assessee and the suit transaction finds place in his income tax returns. Nothing is suggested to P.W.1 that the tax returns do not reflect of the present transaction. In the absence of any suggestion, it is not permissible to the petitioner-accused to move an application to call for the income tax returns of the first respodnent-complainant. The statement filed by the petitioner-accused during the course of examination under Section 313 Cr.P.C is explicit that he is pleading for discharge. He has to substantiate the same by placing on record evidence. The trial Court, having taken note of the statement of the petitioner-accused placed on record during examination under Section 313 Cr.P.C, proceeded to dismiss the petitions filed by the petitioner. I do not see any flaw in the order impugned in the revision warranting interence of this Court in exercise of powers under Section 397 and 401 Cr.P.C.

CRLRC 319 / 2013

CRLRCSR 4449 / 2013
PETITIONERRESPONDENT
GAMPALA GIRIDHAR, KAKINADA.,  VSDR.CH.VENKATESHWARLU, KAKINADA & ANR, REP PP.,
PET.ADV. : DHANAMJAYARESP.ADV. : PUBLIC PROSECUTOR
SUBJECT: Other offences not covered aboveDISTRICT:  EAST GODAVARI

HON’BLE SRI JUSTICE B. SESHASAYANA REDDY

CRIMINAL REVISION CASE No.319 of 2013
ORDER:
This revision is directed against the order dated 08.02.2013 passed in Crl.M.P.Nos.415 of 2012 and 513 of 2012 in Crl.A.No.539 of 2011 on the file of the VII Addl. District Judge, Kakinada whereby and whereunder the learned Additional District Judge dismissed the applications filed under Section 391 Cr.P.C.
2.       The petitioner is the accused and the first respodnent is the complainant in C.C.No.131 of 2010 on the file of the IV Additional Judicial First Class Magistrate, Kakinanda.  
The petitioner faced trial in C.C.No.131 of 2010 for the offence under Section 138 of the Negotiable Instruments Act and suffered conviction to undergo Simple Imprisonment for one year and to pay compensation of Rs.15.00 lakhs, by judgment dated 28.11.2011. 
He filed Crl.A.No.539 of 2011 on the file of the VII Additional District Judge, Kakinada assailing the judgment of conviction and sentence dated 28.11.2011 passed in C.C.No.131 of 2010.  
Pending the appeal, he moved two applications being Crl.M.P.Nos.415 and 513 of 2012.  More precisely, Crl.M.P.No.415 of 2012 is filed under Section 391 Cr.P.C to send the disputed cheque to A.P.F.S.L to ascertain the age of the ink and Crl.M.P.No.513 of 2012 is filed to summon the Income Tax Officer to cause production of the income tax returns of the compalinant for the years 2007-08, 2008-09 and 2009-10. 
 The learned Additional District Jude, on considering the material placed on record and on hearing counsel appearing for the parties, came to the conclusion that the two petitions filed by the petitioner are devoid of mertis and thereby proceeded to dismiss the petitions by order dated 08.02.2013.  
For better appreciation, I may refer paragraphs 10 and 11 of the order passed in Crl.M.P.Nos.415 and 513 of 2012 and it is thus:-
10.  Considering the record, it is admitted fact that the complaint was filed u/s.138 of N.I.Act.  To prove the case, the complainant got examined himself as P.W.1 and got filed cheque issued under Ex.P.1 returned memos under Ex.P.2 and P.3, O/c of legal notice under Ex.P.4, Certificate of posting under Ex.P.5, postal acknowledgment under Ex.P.6, reply under Ex.P.7.  The accused mainly contending that he signed the cheque and it was sysbequently filled.  Secondly, his contention is that the complainant purchased a plot at Srinagar Visakhapatnam and obtained a cheque with the signature of accused at the time of withdrawn membership and later filed that cheque and got filed false case.  During the course of 313 examination, the accused filed written statement denying that he did not issue cheque and the complainant joined as member subsequently withdrawn the membership at that time he demanded to issue blank cheque as security for return of membership, then he issued cheque under Ex.P.1.  Subsequently, he paid the amount, without returning the cheque, this false case is foisted.
11.                 Now the claim of the petitioner is that no amount was lent and asking to send for income tax returns of the respodnent and to sent for the cheque to FSL to decide the age of the ink of the signature of the accused and age of the contens of the ink of the cheque.  Both are required if the contention is that the accused did not liable to pay any amount and he has not issued the cheque and the cheque was stolen and filled.  But it is not the defence in the written statement.  The accused admitted about the issuance of cheque without claiming as security and also claims that he discharged that amount.  So, he is admitting his laibility and also about issuance of cheque.  In these circumstances, the contention of the petiitoner to send the cheque to FSL and to call for the income tax returns of the respondent is nothing but only to drag on the proceedings and the petitioner is directed to argue the case on mertis.  With this observation, the petitions are dismissed.
3.       The order dated 08.02.2013 passed in Crl.M.P.Nos.415 of 2012 and 513 of 2012 is under challenge in this criminal revision case.
4.       Heard learned counsel appearing for the petitioner and perused the order impugned in the revision.
5.       It is contended by learned counsel appearing for the petitioner that moving an application to call for the income tax returns relatable to the complainant does not amount to filling of the gap in evidence. 
 A further contention has been advanced that the petitioner-complainant, while being examined as P.W.1, admitted of showing the transaction in his tax returns and therefore, the income tax returns are required to be scrutinised by the Court for proper appreciation of the evidence brought on record.  Learned counsel placed on record the photostat copy of the deposition of P.W.1-Dr.Cheekatla Venkateswarlu in support of his contention. 
6.       I have gone through the evidence of P.W.1. 
 What is suggested to P.W.1 is that he is an income tax assessee and the suit transaction finds place in his income tax returns.  Nothing is suggested to P.W.1 that the tax returns do not reflect of the present transaction.  In the absence of any suggestion, it is not permissible to the petitioner-accused to move an application to call for the income tax returns of the first respodnent-complainant. 
 The statement filed by the petitioner-accused during the course of examination under Section 313 Cr.P.C is explicit that he is pleading for discharge. 
 He has to substantiate the same by placing on record evidence.  The trial Court, having taken note of the statement of the petitioner-accused placed on record during examination under Section 313 Cr.P.C, proceeded to dismiss the petitions filed by the petitioner. I do not see any flaw in the order impugned in the revision warranting interence of this Court in exercise of powers under Section 397 and 401 Cr.P.C.
7.       Accoridngly, the Criminal Revision Case is dismissed.



_____________________________

JUSTICE B.SESHASAYANA REDDY

01.03.2013
Vjl/Gm

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