RAM KAWAR HUF vs M/S SMC GLOBAL SECURITIES LIMITED

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.02.2024
Pronounced on: 06.03.2024

+ CRL.M.C. 1794/2022 & CRL.M.A. 7632/2022
RAM KAWAR HUF
….. Petitioner
Through: In person.

versus

M/S SMC GLOBAL SECURITIES LIMITED
….. Respondent
Through: Mr.Aman Usman, APP.
Mr.Amar Nath Saini, Mr.Karan Gupta & Mr.Rohit Singh, Advs.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’), challenging the order dated 10.11.2021 passed by the learned Additional Sessions Judge, Central District, Tis Hazari Courts, Delhi (hereinafter referred to as the ‘ASJ’) in Revision Petition, being Cr. Rev. No.701/2019, titled Ram Kawar HUF v. SMC Global Securities Ltd., whereby the learned ASJ has dismissed the Revision Petition filed by the petitioner herein against the Order dated 18.09.2019 passed by the learned Metropolitan Magistrate-02, Central District, Tis Hazari Courts, Delhi (hereinafter referred to as the ‘Trial Court’) in Complaint Case, being CC No. 526862/2016, titled SMC Global Securities Ltd. v. Ram Kawar (HUF).
2. By the Order dated 18.09.2019, the learned Trial Court has dismissed the application filed by the petitioner, who is an accused in the Complaint Case filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short, ‘NI Act’), seeking summoning of the records/documents/books of accounts mentioned in the said application for purposes of cross-examination of the Authorised Representative of the respondent/complainant company, CW-2 Mr.Laxman Kumar.

Allegations in the Complaint:
3. The above Complaint Case has been filed by the respondent alleging that it is engaged in the business of providing trading facilities to its clients. It is a member of the National Stock Exchange of India Ltd. (NSE) and the Bombay Stock Exchange Ltd. (BSE) in Capital Market, Future and Options Segment and Currency Segment and is rendering broking services to its clients.
4. The respondent further alleges that the petitioner entered into an agreement to avail the trading facilities with the respondent company by signing Client Registration Form on 22.02.2011 in all segments of NSE and BSE, apart from two separate individual accounts in the name of the Karta of the petitioner and his wife.
5. It is alleged that after the execution of the said agreements and furnishing of the required documents, the petitioner had been allotted the Unique Client Code (UCC).
6. It is alleged that on 2nd week of September, 2011, there was a debit balance of more than Rs. 50,000/- in the account of the petitioner due to execution of trades conducted by it, and for the discharge of the said liability, the petitioner issued a cheque dated 12.09.2011 for the said amount, asking for it to be presented later as he was going through some financial constraints.
7. The respondent alleges that based on the above assurances, the respondent did not present the cheque for encashment and let the trading continue. It is alleged that as on 24.12.2011, there was a debit balance of more than Rs. 3.50 crores in the account of the petitioner. The petitioner, therefore, issued another cheque dated 24.12.2011 of Rs. 1 lakh as part payment, also stating that the balance amount of more than Rs. 1.50 lakhs shall be adjusted against his other account in his individual name and that of his wife.
8. The respondent alleges that as on 10.01.2012, there was a debit balance of Rs. 3,56,300.43/- (Rupees three lakh fifty six thousand three hundred and forty three paisa only) in the trading account of the petitioner. The abovementioned cheques were accordingly presented for encashment, however, were returned unpaid with the remark “insufficiency of funds”.
9. The cheques were represented for encashment on 13.01.2012, however, were again returned dishonoured with the remark “Funds insufficient”.
10. The respondent alleged that it thereafter served upon the petitioner a legal notice dated 03.02.2012, to which the petitioner responded vide replies dated 15.02.2012 and 06.03.2012.
Earlier proceedings:-
11. The petitioner was summoned in the above complaint, vide Order dated 21.03.2012 passed by the learned Trial Court. The petitioner challenged the said Order before this Court by way of Crl.M.C. 3153/2012 titled Ram Kawar (HUF) v. SMC Global Securities Ltd.. The same was dismissed by this Court, vide its order dated 04.03.2015.
12. In the course of trial of the above Complaint Case, the petitioner filed an application dated 27.07.2017 seeking production of various documents. The learned Trial Court, vide its order dated 27.07.2017, dismissed the said application and also closed the right of the petitioner to further cross examine the AR of the respondent.
13. Aggrieved of the said order, the petitioner challenged the same by way of a Revision Petition, being CR 434/2017. The same was partially allowed by the learned ASJ vide order dated 14.12.2017, allowing the petitioner to bring on record the arbitration proceedings pending between the parties and other documents relevant to the proceedings, and granting one more day to the petitioner to conclude the cross-examination of CW1.
14. Still aggrieved of the above order, the petitioner challenged the same by way of Crl.M.C. 1494/2018 before this Court. The same was disposed of by this Court vide its order dated 23.03.2018, modifying only the condition that the cross-examination of CW1 shall be concluded only in one day. This Court held that if for any valid reason, the cross-examination does not conclude in one day, the learned Trial Court shall be at liberty to grant further time to the petitioner to continue the cross-examination of CW1. This Court further directed that in case the petitioner wishes to confront the witness of the respondent with any documents which are not in his power or possession and which are required to be summoned from a third party, it would be open to the petitioner to apply to the learned Trial Court for the said purpose.
15. Based on the liberty so granted, the petitioner then filed an application before the learned Trial Court seeking summoning of the whole lot of documents, including, but not limited to, complete books of accounts, records and documents which the broker is required to maintain statutorily as per the byelaws of BSE, gist and results of the inspection and audit done by the Exchange in respect of the respondent, records from SMS service provider- M/s Tejosama Technologies (P) Ltd., from Telecom Service Provider- M/s Airtel, from courier service provider- M/s Overnite Express Ltd., etc.
16. The above application was dismissed by the learned Trial Court vide its Order dated 18.09.2019. The petitioner challenged the said Order by way of a Revision Petition, which has been dismissed by the learned ASJ by the Impugned Order.

Submissions of the Petitioner:
17. Mr. Ram Kawar, the Karta of the petitioner, who appears in person, submits that the learned Trial Court as well as the learned ASJ has erred in not considering the judgment of this Court dated 23.03.2018 passed in CRL.M.C. 1494/2018, titled Ram Kanwar HUF v. M/s SMC Global Securities Ltd., wherein the petitioner was given liberty to apply to the learned Trial Court for summoning the documents which are not in the power and possession of the petitioner for purposes of confronting the witnesses of respondent in their cross-examination. He submits that the learned Trial Court and the learned ASJ do not even mention about the judgment dated 23.03.2018 of this Court in their respective orders.
18. He further submits that the learned Trial Court cannot be a mere spectator while recording evidence and has to play a proactive role while adjudicating the matter, and try to search the truth. He submits that the documents which are sought for by the petitioner are crucial for proper adjudication of the complaint case pending before the learned Trial Court. He submits that the said documents are necessary to be summoned for the petitioner to raise a proper defence. He submits that the purpose of cross-examination of the said witness would be defeated if the said documents are not summoned. He submits that the legal right of the petitioner to cross-examine the said witness cannot be taken away by not giving a chance to the complainant to seek production of the relevant documents in relation to dispute between the parties.
19. He submits that the learned ASJ has erred in not considering the legal and factual issues raised by the petitioner in the revision petition as also the earlier order of this Court, and has merely copy-pasted the order of the learned Trial Court. He submits that even after hearing the revision petition before it for almost 20 hearings, the learned ASJ, in the Impugned Order, has not dealt with the grounds and legal issues raised by the petitioner herein.
Submissions of the Learned Counsel for the Respondent:
20. On the other hand, the learned counsel for the respondent submits that the present petition as well as the application before the learned Trial Court is nothing but a delaying tactic of the petitioner. He submits that the petitioner has admitted before the learned Trial Court to have issued cheques and therefore, a presumption has to be drawn against the petitioner under the NI Act. He submits that the petitioner has been filing numerous applications before the learned Trial Court and petition before this Court and the Supreme Court only with the purpose of delaying the proper and expeditious adjudication of the complaint case filed by the respondent.
21. He submits that the petitioner, in a vague manner, specified huge number of unrelated documents in a proceeding under Section 138 of the NI Act and gave indefinite reasons for summoning the documents in the application. He submits that the summoning of the documents called for and the reasons stated in the application show that the documents are not necessary for the adjudication of the complaint case filed by the respondent.
22. He submits that the learned Trial Court as also the learned ASJ have rightly held that, considering the case of the respondent and the defence of the petitioner, the documents sought for are not relevant for the purpose of adjudication of the complaint filed by the respondent under Section 138 of the NI Act.
Analysis and Findings:
23. I have considered the submissions made by the petitioner and the learned counsel for the respondent.
24. This Court in the earlier round of litigation, vide its judgment dated 23.03.2018 in CRL.M.C. 1494/2018, titled Ram Kanwar HUF v. M/s SMC Global Securities Ltd., in relation to an application filed by the petitioner seeking direction to the witness of the respondent to produce documents, has held as under:
“22. Insofar as the production of documents is concerned, it is noticed that the Revisional Court has already given liberty to the petitioner to place on record the documents which may be relevant for the purposes of trial. In case, the petitioner requires to confront any witness with any document, which are not in his power or possession and which are required to be summoned from a third party, it would be open to the petitioner to apply to the Trial Court for the said purpose.”

25. This Court by the above order has merely given a liberty to the petitioner to approach the learned Trial Court for seeking summoning of the documents in case he requires to confront any witness with such documents which are not in his power or possession and which are required to be summoned from a third party.
26. The power of summoning to produce documents is provided under Section 91 of the Cr.P.C. The same is reproduced as under:
“91. Summons to produce document or other thing.—(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed—
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers? Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”

27. A reading of the above provision would show that the Court, where it considers any document to be ‘necessary or desirable’ for the purposes of any investigation, inquiry, trial or other proceedings before such Court, may issue summons to the person in whose possession or power such document is believed to be, requiring him to attend the Court and produce the documents before the Court or to produce the same at the time and place stated in the summons or the order. The pre-condition for issuing such a direction is the satisfaction of the Court that the document sought is ‘necessary or desirable’ for the purpose of the investigation or the inquiry.
28. In State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, the Supreme Court, with regard to the scope and ambit of Section 91 of the Cr.P.C., has held under:
“25. Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is “necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code”. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof.
26. Reliance on behalf of the accused was placed on some observations made in the case of Om Parkash Sharma v. CBI (2000) 5 SCC 679. In that case the application filed by the accused for summoning and production of documents was rejected by the Special Judge and that order was affirmed by the High Court. Challenging those orders before this Court, reliance was placed on behalf of the accused upon Satish Mehra case (1996) 9 SCC 766. The contentions based on Satish Mehra case have been noticed in para 4 as under:
“4. The learned counsel for the appellant reiterated the stand taken before the courts below with great vehemence by inviting our attention to the decision of this Court reported in Satish Mehra v. Delhi Admn. (1996) 9 SCC 766 laying emphasis on the fact that the very learned Judge in the High Court has taken a different view in such matters, in the decision reported in Ashok Kaushik v. State [(1999) 49 DRJ 202]. Mr Altaf Ahmed, the learned ASG for the respondents not only contended that the decisions relied upon for the appellants would not justify the claim of the appellant in this case, at this stage, but also invited, extensively our attention to the exercise undertaken by the courts below to find out the relevance, desirability and necessity of those documents as well as the need for issuing any such directions as claimed at that stage and consequently there was no justification whatsoever, to intervene by an interference at the present stage of the proceedings.”

27. Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19.
28. We are of the view that jurisdiction under Section 91 of the Code when invoked by the 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. It would also have to be borne in mind that law does not permit a roving or fishing inquiry.

29. The above view has been reiterated by the Supreme Court in V.L.S. Finance Ltd. v. S.P. Gupta (2016) 3 SCC 736.
30. This Court in the recent judgment in Shri. B. Sambi Reddy v. CBI, Neutral Citation no.2024:DHC:939, in a similar set of facts has held as under:
“16. This Court notes that the documents requested by the petitioner do not pertain to the case file or documents pertaining to the case registered against him, rather are a part of another case alleged to have been registered on the complaint of the co-accused against the complainant in the present case. On the other hand, it is the case of the CBI that said documents which have already been supplied to the petitioner are in no manner related to the case of the prosecution nor have been relied upon by the prosecution to prove its case beyond reasonable doubt. Even then by the orders of the learned Trial Court documents have been provided to the petitioner earlier. This only implies that the petitioner is trying to delay the Trial.
17. This court observes that establishing the necessity of presenting documents is sin qua non for the petitioners to facilitate the further adjudication of the case. In the instant case, the petitioner does not contend that specific documents, crucial for the prosecution’s assertion of its case beyond reasonable doubt, have not been disclosed. Instead, the petitioner seeks reference to another case purportedly filed against the complainant. In the court’s assessment, at this juncture when the Trial is at the stage of prosecution evidence, the petitioner has not successfully demonstrated to the satisfaction of this court why these documents are pertinent for examination at this stage. In case he needs them, he can file appropriate application before the concerned Court to be provided with certified copies of those documents as they pertain to another State and move appropriate Court of law there in case he fails to get the same.”

31. This Court, in Sukhmohinder Singh Sandhu v. CBI, ILR (2010) VI Delhi 407, has held that Section 91 of the Cr.P.C. cannot be used for making a roving and fishing inquiry. I may quote from the judgment as under:-
“11. This provisions of Section 91 of the Cr.P.C. empower a court to summon or order production of any document which it think necessary or desirable for the purpose of inquiry or trial. The word “document? though not defined in Cr.P.C., however, has been defined in section 3 of Evidence Act and would mean any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means. The accused under section 91 Cr. P.C. cannot ask the production of documents as a matter of right. However, while making application he has to specify the document and show its relevance. He cannot ask the court to make roving and fishing enquiry as has been done in the applications under consideration. Only when he discloses the nature of document and its relevance, the court to decide if the documents sought to be summoned was necessary or desirable for the just decision of the case.”

32. In Motilal Vora v. Subramanian Swamy & Anr., (2016) SCC OnLine Del 3792, this Court taking cognizance of the precedents on Section 91 of the Cr.P.C., has observed as under:-
“19. Learned Senior Counsel for the petitioners vehemently argued that the orders passed in the present case do not reflect any necessity or desirability. On this point, judgment in the case of Ashok Chawla v. Ram Chander Garvan, Inspector CBI, MANU/DE/1243/2011, has been referred in which it was observed that Section 91 Cr.P.C. provides that whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons or such officer a written order, requiring the person in whose possession or power such documents are believed to be to attend and produce the same. On similar point, various other judgments have also been relied upon:
(i) “The power given under Section 91 of the code is a general and wide power which empowers the court, the production of any document or any other thing at any stage of any investigation, inquiry or other proceedings under the Code of Criminal Procedure It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or things was necessary or desirable in its view, then the court could pass an order both in favor of the accused as well as the prosecution. It is no doubt true that such power would not be exercised where the documents or thing may not be found relevant or it may be for the mere purpose or delaying the proceedings or the order is sought with an oblique motive.” [Neelesh Jain v. State of MANU/RH/0569/2005] Rajasthan
(ii) “As per Section 91 of the Code of Criminal Procedure, when the Court considers that production of any document is necessary or desirable for the purpose of trial of a criminal case, such Court may issue summons for the production of the document sought for. The Court has to judicially consider whether production of the document is relevant for the purpose of trial. Section 91 of the Code of Criminal Procedure does not confer an absolute right on the accused to seek for production of any documents. The party who prays for issuance of summons for production of document has to necessarily demonstrate before the Court that production of such document is material for arriving at a just decision in the case. If the petitioners fail to establish that a particular document is necessary and desirable to be summoned, then the Court shall not summon the document.” [Alagesan and others v. State (2008) Cri.L.J. 3300 (Madras)]
(iii) “Section 91 Cr.PC envisages production of any document or other thing which according to the court or police officer in charge of the police station is necessary or desirable for the purpose of any investigation, enquiry or trial or other proceedings under the Code. The width of the powers under this section is unlimited. The only limitations are as regards to the such documents or things to be necessary or desirable for the purposes mentioned therein. Though the case of Debendra Nath Padhi (supra) pertained to the stage of framing of charges and the Apex Court held that at that stage, the case of production of documents was not made out, but the plain and literal reading of provisions of section 91 Cr.PC would reveal that the court was empowered to order for production of document or other thing only when that may be necessary or desirable for the purpose of enquiry, trial or other proceedings. The court has to deal with this issue to satisfy itself as regard to the necessity or desirability the documents sought to be produced of” [Ravindra Kuman Chandolia v. CBI 2012 SCC Online Del 1263]
(iv) “Any document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is ‘necessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Code’. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section…..
In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to 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. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused….” [State of Orissa v. Debendra Nath Padi (2005) 1 SCC 568]
(v) “Section 91 Cr.P.C. envisages the production of any document or other thing which is required or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code, if the Court is satisfied that such documents are essential and required at the relevant stage of proceedings. For allowing the application for production of documents or other things under Section 91 Cr.P.C., the Court has to deal with the issue of their necessity and relevancy and also whether such documents are required at the stage when they are sought to be summoned by the applicant. Summoning of documents cannot be allowed on a mere asking by the applicant or as a matter of routine. Section 294 Cr.PC provided for admission/denial of the documents filed in the Court by the prosecution or the accused. It also provided that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed and that the court may, in its discretion, require such signature to be proved.” [Chandgiram v. State 2012 SCC Online 1740]”

33. The learned Trial Court in the Order dated 18.09.2019 has observed as under:

“Before proceeding to dispose of the application it would be worthwhile to see the defence taken by the accused in his notice under section 251 Cr.P.C. on 25.04.2013 and the application under section 145 (2) NI Act moved by him. In reply to the notice under section 251 Cr.P.C. accused had denied the liability qua cheques in question and stated that they were not issued against any liability. In his application under section 145 (2) Act he submitted that the present matter was not maintainable as the dispute between the parties was to be resolved by way of arbitration.
In the proceedings u/S 138 NI Act, the scope of cross-examination is limited to the extent of issuance of cheque, giving legal notice and circumstances relating to issuance of cheque. Also, in cross-examination the accused is required to rebut the presumption under Section 139 NI Act by disproving the liability, by conforming to the line of defence taken in notice under Section 251 Cr.P.C. and in application under Section 145 (2) NI Act.
The contention of the accused is that he needs to summon the abovementioned documents for the purpose of cross-examination of the complainant. Perusal of record shows, that complainant has been cross-examined in three effective dates. The accused is free to ask any question to the complainant, but witness can’t be compelled to produce the record /document, if witness himself does not wish to produce. It is settled principle that if any witness is deliberately not producing any document, which he is obligated by law to produce, then Court may draw an adverse inference against the witness.
The accused has prayed for the summoning of full and complete arbitral records. The present case is not based on an arbitration award, but it is a proceeding under Section 138 NI Act which is a separate proceeding and is based on dishonour of cheque, it is the case of the complainant that accused had availed the service of trading facility of complainant by entering a member client agreement with complainant and after settlement of the account, there existed some debit balance, for the discharge of which accused issued cheque, which got dishonoured. Hence, complete arbitral records are not relevant for the proceedings under Section 138 NI Act.
Also, apart from arbitral records, the documents which the accused wants to summon are also not relevant for the purpose of this case. This is the stage cross-examination of complainant and at this stage, accused is praying for summoning of unnecessary document which will result in unduly prolonging the matter. The accused is free to bring his evidence or any document at the stage of defence evidence.
Hence, considering the case of the complainant and the defence of the accused taken at the stage of under Section 251 Cr.P.C. and in Section 145(2) NI Act, the present application is devoid of merits and stands dismissed.”

34. The learned ASJ, while dismissing the challenge of the petitioner to the above order, has observed as under:
“ 18. The present petition is a revision petition and the scope and ambit of revision petition is very limited one. In a revision petition, Revisional Court is to satisfy itself as to correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings. After perusal of impugned order dated 18.09.2019, I find no illegality, irregularity or impropriety in the same. It is reiterated that the first application claiming same relief was filed by accused/petitioner on 19.02.2014 and the said application was dismissed by Ld. Trial Court vide order dated 27.08.2015. Order dated 27.08.2015 was not challenged by petitioner/accused and said order attained finality. It is further pertinent to mention that same prayer/application was again made/filed by accused on 20.02.2016 in Trial Court. Ld. Trial Court rejected said application on 20.02.2016 itself. Even order dated 20.02.2016 was not challenged by petitioner/accused. On 20.02.2016, CW-1 was examined in chief and was partly cross examined. Some documents were even supplied to petitioner/accused by complainant/respondent on 08.04.2016 in compliance of directions given by Ld. Trial Court. Vide order dated 08.04.2016, Ld. Trial Court gave liberty to accused to cross examine AR of complainant for such deficiency. On 26.03.2018, accused/petitioner filed third application claiming same relief. The same was dismissed by Ld. Trial Court vide impugned order dated 18.09.2019. Ld. Trial Court gave liberty to accused/petitioner to produce the said documents in his defence at the stage of defence evidence.”

35. The present petition was first listed before this Court on 26.04.2022. This Court directed the petitioner to file a three page summary clearly identifying the documents of which the petitioner seeks summoning before the learned Trial Court, and referring to the relevance of the said documents within the context of the proceedings under Section 138 of the NI Act instituted by the respondent against the petitioner.
36. In compliance with the above direction, the petitioner filed a reply dated 09.05.2022, giving the list of documents and the reason for seeking their production, as under:
“1. In pursuance of directions dated 26.4.22 of Hon’ble High Court following documents with justification are prayed to be summoned w.r.t. their relevancy to proceedings u/s 138 of NIA.
i. The complete books of accounts, records and documents which the broker is required to maintain statutorily as per the byelaws of the National Stock Exchange of India Limited about the Futures and Options Segments Trading Regulations 2000 specially as per chapters 2, 3, 4, 5 and 6 thereof for the financial year 2011-2012. As all the trades are done on exchange platform the exchange has to provide the trade logs and the NEAT system generated transactions slips as per these trading regulations. It is stated illegally by the broker that the maintenance of such records, books etc. is a matter between it and the exchange so these documents need not be produced on the records of the learned trial court for cross examination of the AR. As per the judgement of the Hon.;ble Supreme Court in the case of M.S. Narayana Menon@ Mani (Appellant) Vs. State of Kerala & Another (Respondent) decided on 4.7.2006 in Appeal (Crt.) 1012 of 1999. a broker is supposed to maintain the books of as per regulatory requirements in the stock market.
ii. The respondent committed forgery in the signatures of the petitioner in the physical delivery slips (POD) in connivance and collusion of the courier service providers namely (i) M/s On Dot Courier & Cargo Ltd., 8/42, Kirti Nagar Industrial Area, New Delhi and (ii) M/s Ovemite Express Limited, Overnight
House 11099C, East Park Road, New Delhi-110005 in the delivery of various documents such as:
a. The alleged bogus delivery of the welcome kit, the pin matter, the service of Client Registration Form, etc.
b. The bogus delivery of contract notes.
c. The bogus delivery of ledger, quarterly sta about tements etc.
All original ADs & complete records are to be summoned.
The petitioner pleaded and also filed an handwriting expert opinion on the records of the courts below during section 34 A&C Act 1996 proceedings to prove forgery in his signatures.
iii. The broker created a false, bogus, fictitious, ungenuine, unauthorized and fake email ID kawar_ram@yahoo.in for the client. The broker claims wrongly that certain contract notes, financial statements etc. were also sent electronically via this email address but the hard fact is that the client never received any such emails in the absence of the email address/password/code word and due to the computer / internet illiteracy of the accused at the relevant point of time. Complete records may kindly be summoned relating to sending of the bogus ECNs through the medium of service provider YAHOO with complete IP address. The broker sent fake and bogus electronic contract notes (ECNs) & no reliable proof is available with broker for all the ECN trade logs in terms of SEBI Circular No.MRD/DOP/SE/Cir-20/2005 dated September 8, 2005.
iv. The broker misused the M No. 9810111503 (registered under DNCR with Air Tel) to give fake and bogus SMSes to the client through the alleged SMSes serv1ce provider M/s Tejosama Techonoligies (P) Limited, 30, Pragati Mansion, 2nd Floor, Dr. D.V.G. Road, Basavanagudi, Bengaluru and mobile service provider M/s Air Tel. Original records from these service providers are to be summoned.
v. During the course of cross examination the broker AR did not answer any relevant questions on the illegal ground that all the issues are taken care of by the arbitral awards which are dependent on the arbitral records and the arbitral proceedings. It is statutory as per section 19(1) of the Arbitration and Conciliation Act, 1996 that arbitral tribunal shall not be bound by the CPC 1908 or the Indian Evidence Act, 1872 as such the broker cannot criminally prosecute the petitioner on the basis of these proceedings as the arbitrators have not considered many issues by taking shelter under this section 19(1) and the broker cannot avoid the relevant questions. Even the broker relied on these provisions in not giving all information to the arbitrators. As such all the arbitral records may kindly be summoned.
vi. The gist and results of inspection and audit done by exchange in respect of the complainant broker for the said F.Y. covering the various facets as per the prescribed proforma contained in the said trading regulations may kindly be summoned from the exchange to know about the illegalities committed by the broker in entering unauthorized trades in the petitioner account.”

37. From the above, it is apparent that the petitioner is seeking the production of documents only with the intent of conducting a fishing and roving inquiry and to, in fact, embarrass the trial. Such attempt of the petitioner cannot be allowed to succeed. In any case, if the learned Trial Court is later of the opinion that these documents were relevant to be produced by the respondent for proving the case against the petitioner, the Court will draw an adverse inference of their non-production against the respondent. However, at this stage, this Court is of the opinion that the documents, production of which are sought for by the petitioner, are neither relevant nor necessary for a proper and fair adjudication of the Complaint filed by the respondent.
38. In Kailash Verma v. Punjab State Civil Supplies Corpn. & Anr., (2005) 2 SCC 571, the Supreme Court has held as under:
“5. It may also be noticed that this Court in Rajathi v. C. Ganesan (1999) 6 SCC 326 said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.”

39. In view of the above, I find no merit in the present petition. The same is, accordingly, dismissed. The pending application is also disposed of as infructuous.
40. There shall be no orders as to costs.

NAVIN CHAWLA, J.
MARCH 06, 2024/AS
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