Interim Order 2

Order Details: Order
Pdf Text: 1 C. C. No.2179/SS/2018
Exh.42
ORDER BELOW EXH.42
1. This is an application filed by accused under Section 91 of
Cr.P.C.
2. Brief contentions in the application are as under:
Complainant has filed present complaint under Section 138
of N.I. Act. It is contended that accused wants to establish their defense
which will go to the root of the complainant’s case if documents
mentioned in application are provided to them. It is next contended
that complainant is doing illegal money lending business/ transaction
without license. It is further contended that to set up defense of
accused, documents i.e. income tax return from 01/04/2011 to
31/03/2019, balance sheet and computation of income of complainant
from 01/04/2011 till 31/03/2019, bank account statement of
complainant from 01/04/2011 till 31/03/2019, license of money
lending in the name of complainant and copy of complaint filed under
Section 138 of N.I. Act filed by complainant before any other Court in
India, evidence recorded in them, list of documents filed in those cases,
statement of accused recorded, any other documents relied by
complainant in those cases, judgment if any, passed and copy of
written permission given or license taken from R.B.I. for receiving
interest, if any, are necessary on record. It is also contended that
accused are ready to pay necessary charges required to produce said
documents on record. It is further contended that no inconvenience will
be caused to complainant by producing these documents. It is next
contended that these documents are in possession of complainant and
those are required for just decision of the case. It is lastly contended
that in the interest of justice and for just and fair decision of case,
-- 1 of 4 --
2 C. C. No.2179/SS/2018
Exh.42
present application may be allowed and complainant be directed to
bring on record said documents.
3. Complainant has filed his reply at (Exh.46) and objected
the application. He has submitted that documents demanded by
accused are not required to prove that he is an investor, as transaction
between parties has been described in Memorandum of Understanding
entered into between them. It is next submitted that bare perusal of
application, it is evident that accused is using this application as a tool
of delay the matter and made vague/ ambiguous statements. It is also
submitted that it is not clarified how the documents are relevant and
required. It is further submitted that there is no other complaint under
Section 138 of N.I. Act against present accused pertaining to present
transaction. It is also submitted that written permission from R.B.I. for
receiving interest is inapplicable to be sought. He has further submitted
that he has already produced all relevant documents on record
pertaining to these transactions. It is next submitted that grave injustice
will be caused to him, if present application is allowed as it is vague
and ambiguous. It is also submitted that income of complainant is
matter of his right to privacy and irrelevant in the present case.
Therefore, it is prayed that application be rejected with exemplary
costs.
4. Heard advocate for both sides at length.
5. Perused complaint. It is contended that accused invited
father of complainant to invest in his project which was under
development. He has contended that he agreed and executed M.O.U.
with accused. He booked one flat in ongoing project of accused along
-- 2 of 4 --
3 C. C. No.2179/SS/2018
Exh.42
with his brother and sister. He also contends that he paid total sum of
Rs.15,00,000/- by way of three cheques of his share to the accused. It
is also contended that accused could not execute project therefore, he
requested the accused to return the amount. It is further contended that
accused agreed to refund investment made by him and issued him five
cheques of Rs.3,00,000/- each drawn on his bank account which were
subsequently dishonoured. In cross-examination C.W.1 has admitted
that he received regular interest from accused from year 2011 to 2016.
He could not state what percentage of interest he had received from
accused. He states that he has been shown as investor in the M.O.U.. He
has admitted in his cross-examination that rate of interest was fixed at
27% p.a. in M.O.U. He states that he had shown said interest in income
tax return between period from 2011 to 2016.
6. Considering admission given by CW.1 in his cross-
examination, in order to know as to how much amount he received
from accused and shown as interest in income tax return of the year
2011 to 2016, his income tax return, balance sheet as well as his bank
statement of said period ,appears to be just and essential. Complainant
has denied allegations of accused that he does money lending business.
In view of the denial , question of taking written permission from R.B.I.
by complainant does not survive. Accused has not given details of other
complaints filed by complainant under Section 138 of N.I. Act. In view
of all these discussions, I am of considered opinion that only income tax
return, balance sheet and bank statement of complainant from
01/04/2011 till 31/03/2016 are necessary for just decision of the case.
Therefore, application deserves to be partly allowed. In the result, I
pass following order :
-- 3 of 4 --
4 C. C. No.2179/SS/2018
Exh.42
ORDER
(1) Application is partly allowed.
(2) Complainant is directed to produce his Income Tax Return
for assessment year 2011-12, 2012-13, 2013-14, 2014-15 and
2015-16 on record.
(3) He is further directed to produce certified copy of balance sheet
and computation of his income from 01/04/2011 to 31/06/2016.
(4) He is also directed to produce certified copy of his bank account
statement of said period.
(5) If complainant fails to produce said documents, necessary
statutory inference will be drawn against him.
Date : 20/12/2024
Sd/-
( Shri. R.D. Dange )
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai
-- 4 of 4 --