K.S. & CO. THROUGH SAKABHAI @ SANKABHAI PRABHATBHAI DESAIversusSTATE OF GUJARAT

 R/SCR.A/7429/2017                                 CAV JUDGMENT DATED: 13/04/2026




                                                 Reserved On   : 24/03/2026
                                                 Pronounced On : 13/04/2026

            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7429 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE J. L. ODEDRA

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           Approved for Reporting                  Yes            No
                                                              ✔
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 K.S. & CO. THROUGH SAKABHAI @ SANKABHAI PRABHATBHAI DESAI
                            Versus
                   STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR. MANOJ T DANAK(6264) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA


                              CAV JUDGMENT

1       Aggrieved by the order passed below Application Exh.68

       and 80, the petitioner (original complainant) has preferred

       the present Special Criminal Application praying for the

       following reliefs:

                “8.   The petitioner therefore prays that:-

                (A)   YOUR LORDSHIPS be pleased to issue an


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               appropriate writ, order or direction quashing and
               setting aside the order dated 27.10.2016 passed
               below Exh.68 as well as the order dated 29.05.2017
               passed below Exh.80 in Criminal Case No.3098 of
               2013;

               (B) Pending admission, hearing and final disposal
               of this petition, YOUR LORDSHPS be pleased to stay
               operation, execution and implementation of the order
               dated 27.10.2016 passed below Exh.68 as well as the
               order dated 29.05.2017 passed below Exh.80 in
               Criminal Case No.3098 of 2013;

               (C) YOUR LORDSHPS be pleased to grant such
               other and further relief(s) in favour the petitioner as
               may be deemed fit in the interest of justice.”

2      The facts relevant for the present matter so far as

      necessary to decide the controversy at hand, being in a

      narrow compass, are enumerated as follows:

2.1 It appears that on 26.03.2010, under a loan agreement,

      the appellant (original complainant) had advanced a sum of

      Rs.2,50,000/- to the respondent No.2 (accused) herein,

      purportedly to enlarge the scope of the business of

      respondent No.2, consequent to the respondent No.2

      having purchased a vehicle (Bus, bearing registration

      No.GJ-14-T-211). It appears that some of the installments

      under the said loan agreement were paid by respondent

      no.2. However, subsequently, the accused defaulted in

      payment of the said residual installments. It is alleged that



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      the complainant produced a Cheque for the residual

      amount including the interest being Cheque No.239784

      dated 02.04.2013 for an amount of Rs.2,05,000/-. On

      presentation of the said cheque, the said cheque came to

      be dishonoured for the reason of ‘insufficient funds” and

      hence, after following requisite statutory provisions, the

      appellant/complainant           preferred          criminal     complaint

      No.3098 of 2013.

2.2 In the said Criminal Complaint proceedings, by way of

      Exh.16, the complainant had filed affidavit of examination-

      in-chief.     Subsequently,      the       cross-examination        ensued

      thereunder. Thereafter, in view of certain admissions,

      application Exh.68 came to be preferred by the learned

      advocate for the Respondent No.2(accused), whereunder

      the impugned orders calling upon the appellant to produce

      his income-tax returns for the year 2010-11,2011-12,

      2012-13 came to be passed, thereby disposing the said

      application Exhibit 68.

2.3 An        application   for   reviewing        the    said    order     below

      Application Exh.68 was preferred by the applicant, which

      too, came to be rejected by the Court.

3      Learned advocate for the petitioner submitted that as


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      such, all the necessary and requisite documents pertaining

      to the transaction at hand, namely, the loan agreement

      under which the loan was negotiated, the details of the

      cheque through which the loan was advanced and

      disbursed to the account of the Respondent No.2(accused)

      etc. had already been adduced on the record before the

      Court. It was submitted that even if in the cross-

      examination, it was admitted by the appellant that under a

      particular document, the appellant is entitled to charge the

      interest on the loan advanced; that such document is with

      the custody of the appellant; and that even if it was

      admitted that in the accounts and in the income tax

      returns of the Appellant, the amounts advanced has been

      shown, yet the Trial Court could not have called upon the

      applicant to produce income-tax returns for the year 2010-

      11, 2011-12, 2012-13. It was submitted that as such the

      Respondent No.2(accused) never disputed the existence of

      the loan agreement and that in confirmation of the same,

      the Respondent No.2 (accused) has even paid certain

      installments. That the income-tax returns are not filed by

      the complainant, merely in respect of the Respondent No.2

      (accused) but for number of other persons and as such the


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      amount if, any due towards those persons even if reflected

      in the said returns, there is no way to ascertain as to what

      is the amount due to the petitioner from the Respondent

      No.2 (accused). It was, thus, submitted that as such, the

      income-tax returns are wholly irrelevant for the purpose of

      adjudication   of   the     complaint     under    the     Negotiable

      Instruments Act. It was further submitted that the decision

      of this Court in the case of Hiten Parekh Proprietor-Parekh

      Enterprises vs. State of Gujarat and another , reported at

      Laws (GLH)2009-10-174, as also the decision of the

      Bombay High Court in Quazi Mohomed-Hanif vs. Mumtaz

      Begum reported at 1990 Cri.L.J 171 (Bom.) support the

      stand of the petitioner.

4      As indicated in this Court’s order dated 24.03.2026, this

      Court had recorded that at the time of hearing of the

      present petition, learned advocate for respondent No.2 did

      not appear. It appears that even on earlier occasion, i.e. on

      26.03.2019, one Ms. Avni Patel, learned advocate had

      appeared on behalf of one Mr. Zakirhusen Belim, learned

      advocate for respondent No.2 and had asked for time.

      Subsequently, it appears that the High Court Legal

      Services Committee had fielded learned advocate Mr.


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      Manoj T. Danak, who too has not taken pains to remain

      present during any part of the day before this Court to

      effectively represent respondent no.2 before this Court,

      nor, did anyone ask for time for the said respondent No.2.

5      Having heard learned advocate for the appellant, this

      Court proceeds to decide the lis involved in the present

      matter in terms appearing hereinafter.

6      On perusal of the impugned order, the reasoning of the

      Court in so far as providing copies of income-tax return as

      aforesaid, deserve to be quoted hereinbelow for the ease of

      reference.

               “3.     I have heard the Ld.Advocate for both the
               parties and examined the relevant case papers and
               the mandate of Section-91 of the Cr.P.Code which
               lays down that the documents can be called for if the
               Court thinks it desirable and the section itself being
               clear that no party to the proceedings as of right can
               ask for invoking the jurisdiction under this provision.
               As far as grounds of this applications are concerned,
               the same are required to be appreciated in the back
               drop of the complaint which is filed under Section
               138 of the N.I. Act. Further, no party can be called
               upon to give particular evidence unless the same is
               permissible in law. Herein this case the part of the
               cross examination of the complainant has been
               recorded till dated 29/02/2016 and subsequently the
               complainant filed certain documents vide list Exh.67
               on date 02/07/2016, being the copy of Rojmel as also
               the abstract recorded in the name of the accused.

               4.    The grievances of the accused is that the
               same are not as per the admission of the complainant


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               during his cross examination and so the application
               deserves to be allowed. However, appreciating the
               cross examination of the complainant the same
               reveals that the complainant states in his cross-
               examination that he relies upon the agreement for his
               entitlement to charge the interest. Hence, the
               document sought for at Sr.No.1 does not need to be
               called for.

               5.      Further, the complainant states that he
               maintains the account pertaining to loan advanced to
               the accused. The complainant has relied upon the
               documents which he produced vide list Exh.67.
               Hence, the accused cannot insist for producing the
               same again in considered fact that it is the matter of
               choice of the complainant as to what evidence he
               intends to lead. As far as documents at Sr.No.2 is
               concerned. The accused has opportunity to call upon
               the witness. However, a copy of the income-tax return
               of the particular year as sought for by the accused at
               Sr.No.4 if be ordered to be produced, would given an
               opportunity to the parties to put their respective
               stand in accordance with law and in view of the
               foregoing discussion, following order is passed below
               this application in the interest of justice.

                                Order

               The present application of the accused at Exh68
               stands partly allowed to the extent that the
               complainant is ordered to produce the copy of
               income-tax return within 30 days from the date of
               this order if any filed in this regard for the period as
               shown in the application at Sr.No.4 at Exh.68.
                    No order as to costs.”
                                  (Emphasis supplied by underlining)

7      On perusal of the aforesaid reasoning of the impugned

      judgement, especially at Paragraph No.5 of the said

      impugned order dated 27.10.2016, implies that the Trial



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      Court was swayed and had simply reasoned that if the

      copy of the income-tax return for the particular years, as

      sought for by the accused, is ordered to be produced, it will

      give an opportunity to the parties to put their respective

      stand in accordance with law. Except for the aforesaid,

      there is no reason, as to why the income-tax returns were

      ordered to be produced by the trial Court.

8      Now, to the case laws adduced on behalf of the appellant,

      it appears that Quazi Mohomed-Hanif            (supra), does not

      deal with, in any manner, as to the production of income-

      tax returns or the necessity producing them before a

      Court. In fact, the said case pertains to the right of a

      married woman to seek maintenance, post the coming into

      effect of the Muslim Women             (Protection of Rights on

      Divorce) Act, 1986.

9      Reliance placed by the learned advocate for the appellant

      on Hiten Parekh (supra) is of some substance. In the said

      case, after the conviction of an accused under the

      provisions of Section 138 of the Negotiable Instruments

      Act, 1881, the appellate Court had overturned the said

      conviction, citing that the original complainant had totally

      failed in discharging the initial burden of proving that there


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      was legally enforceable debt, as the original complainant

      (of that case) did not produce any cogent proof such as

      books of accounts, accounts notebook, income-tax report,

      income-tax return, audit report, audit book etc. The said

      finding came to be overturned by this Court, in the said

      case      of   Hiten    Parekh    (supra),     by    holding      that     as

      documentary evidences, such as the debit entries, copy of

      ledger with details of all financial transactions having

      taken place before the Trial Court, therefore, the view that

      the complainant, in that case, has miserably failed to

      produce cogent proof, more particularly, the documents

      such as income tax returns/reports, was held to be

      unsustainable.

10     Taking cue of the aforesaid ratio laid down by this Court,

      in the present case too, the directions of the trial Court in

      directing production of income-tax returns is de hors any

      reasoning or logic. As to how the income-tax returns are

      relevant for the purposes of deciding the said proceedings

      is not borne out from the impugned order. Clearly, the

      income tax returns, cannot disclose the right of the

      Petitioner to      charge interest. Nor can it the same

      demonstrate       the    aggregate         outstanding     due      to    the


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         Petitioner from the Complainant. However, at this stage

         this Court does hold that the direction to produce other

         documents, such as the documents pertaining to the

         authority of the Petitioner to charge interest etc, or the

         documents maintaining the accounts of the Complainant

         are indeed germane to the dispute before the Trial Court.

         Hence, this Court is inclined to grant the prayer as prayed

         for in the present proceedings, more particularly, at prayer

         clause 8(A) albite, only so far as it pertains to the quashing

         of impugned orders dated 27.10.2016 and 29.05.2017, to

         the extent that it directs production of certified copy of

         income tax returns.

11       As a result, the order dated                      27.10.2016 passed below

         Exh.68 as well as the order dated 29.05.2017 passed below

         Exh.80 in Criminal Case No.3098 of 2013 are quashed and

         set aside to the aforesaid extent. The petition stands

         disposed of. The interim relief granted vide order dated

         01.07.2019 by this Court stands vacated. Rule is made

         absolute accordingly.



                                                                            (J. L. ODEDRA, J)
SUDHIR




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   Original copy of this order has been signed by the Hon'ble Judge.
   Digitally signed by: SUDHIR ACHUTHAN EZHUTHASSAN(HC00192), GOV, at High Court of Gujarat on 13/04/2026 16:28:45