Shalini Chavan vs Dhanvarsh Saakh Sahkari Sanstha Maryadit Kukshi Through Director Dipendra

This petition has been filed under Section 528 of BNSS, 2023 read with Section 482 of Cr.P.C for setting aside of the order dated 15.5.2026 (Annexure P/8) passed by the JMFC, Kukshi District Dhar in the pending complaint case No.40/2025 and the application dated 17.4.2026 filed by the complainant be allowed.

2 . Brief facts of the case are that the complainant/respondent (hereinafter the complainant is referred as 'the complainant/respondent') has filed a complaint case under Section 138 of N.I. Act against the present applicant/accused (hereinafter referred as 'the applicant/accused'). During the course of evidence on behalf of the complainant/respondent and examination of the complainant/respondent in cross examination a question has been put by the applicant/accused (applicant/accused in this case) about the authority to advance the amount on behalf of the Cooperative Society whereupon the complainant/respondent witness has replied that he cannot answer the question before perusal of the bye-laws of the Society. The applicant/accused has then filed an application under Section 94 of BNSS, 2023 for calling the documents of bye-laws of Cooperative Society for the purpose of effective cross examination of the witness which has been rejected by the learned JMFC by way of impugned order. Being aggrieved / dissatisfied by the same this petition has been filed by the accused.

3 . It is submitted by the learned counsel for the present applicant/accused that it is a case of Section 138 of NI Act, when the complainant witness Dependra Bhavsar (PW1) was cross examined by the counsel of the applicant/accused and asked a question to the witness about the authority to grant the advance on behalf of Society. He stated that without perusing the bye-laws of the Cooperative Society he cannot answer it. The present applicant/accused then has filed this application before the learned trial Court under Section 94 of the Cr.P.C to get produce the documents of bye-laws of the Cooperative Society to enable the applicant/accused to conduct an effective cross examination but that application has been rejected by the learned trial Court vide order dated 15.5.2026 therefore, the present applicant is before this Court.

4 . However, it is further submitted by the learned counsel for the present applicant/accused that the question asked on behalf of the accused is relevant and no such objection has been raised on behalf of the complainant/respondent nor the Court has directed that such question is irrelevant. Since the question is relevant and the witness is unable to answer the question without referring to the bye-laws of the Cooperative Society therefore, such documents are necessary for effective cross examination by the applicant/accused. She prays for setting aside the impugned order and to direct the learned trial Court for calling the byelaws of the Cooperative Society to enable the accused / applicant for effective cross examination.

5 . Per contra, learned counsel appearing on behalf of the complainant/respondent has vehemently opposed the prayer and supported the impugned order of the learned trial Court stating that the application under Section 94 of BNSS, 2023 (Section 91 of Cr.P.C) can be filed at the stage of defence witnesses as Hon'ble Apex Court in the case of Suninder Sandha vs. State of NCT of Delhi & Anr . passed in Criminal Appeal No.5150-5151 of 2025 dated 2.12.2025 has held in para 17. He submits that the conduct of the present applicant is to cause delay in the trial of the case. In this regard he has filed order sheet of the learned trial Court with his objection, prays for rejection of the application.

Having heard the learned counsel for the parties and perusal of the record in para 17 of the aforesaid citation the Hon'ble Apex Court has held inter alia as under :-

The law is no longer res integra, having been lastly settled by the 3-Judge Bench in Sarla Gupta (supra), which provides clarity as to the relevant stage at which power under Section 91 of the Code may be invoked. In the underlying case in these appeals, such stage has not yet been reached, as defence evidence has not commenced. For clarity, the relevant extracts from Sarla Gupta (supra) read as below :-

‘68. Hence, some of our important conclusions are as under :

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We hold that a copy of the list of statements, documents, material objects and ehibits that are not relied upon by the investigating officer must also be furnished to the accused. As held by this Court, the object is to ensure that the accused has knowledge of the documents, objects, etc. in the custody of the investigating officer which are not relied upon so that at the appropriate stage, the accused can apply by invoking the provisions of Section 91CrPC (Section 94 BNSS) for providing copies of the documents which are not relied upon by the prosecution.

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At the stage of entering upon defence, an accused can apply for the issue of process for the production of any document or thing in accordance with Section 233(3)CrPC [Section 256(3) BNSS]. At this stage, he can also apply for the production of a document or a thing that is in the custody of the prosecution but has not been produced. A fair trial is a part of the right guaranteed to an accused under Article 21 of the Constitution. The right to a fair trial of the accused includes the right to defend. The right to defend consists of the right to lead the defence evidence by examining the witnesses and producing the documents. Therefore, the accused is entitled to exercise his right at the stage of entering upon defence by compelling the prosecution or a third party to produce a document or a thing in their possession or custody. The court can decline the request of the accused for issuing process for the production of documents only on the limited grounds set out in sub-section (3) of Section 233CrPC.

xxx (emphasis supplied)"

7 . Considering the law laid down in the case of Suninder Sandha (supra) if the accused in his defence wish to call any document, he may file an application under Section 91 of the Cr.P.C at the stage of the defence evidence, but not prior to that. However, here in this case the facts are different as during the cross examination of the complainant (PW.1) when the question has been put to the witness as regard the authority to advance by the witness on behalf of the Cooperative Society, he replied that he cannot answer the question without perusing the bye-laws of the Cooperative Society. In these circumstances the effective cross examination of the witness cannot be done without calling the documents of bye-laws of Cooperative Society. Had such opportunity of calling those documents would not have been given to the accused, he will be deprived from cross examining the complainant on the point which is material for proper disposal of the case therefore, in the interest of justice, it seems appropriate to this Court that the documents of bye-laws of Cooperative Society be called for enabling the accused for effective cross examination of the complainant Dependra Bhavsar (PW1).

8 . In the present petition only the impugned order is challenged therefore, the observation of this Court is limited to the order impugned. As far as the contention about the delay caused by the present applicant -accused is concerned, the learned trial Court is at liberty to consider it appropriately as per law.

9 . Ex-consequentia, the impugned order of the learned trial Court dated 15.5.2026 is hereby set aside and it is directed that the documents of bye-laws of Cooperative Society be called to enable the accused applicant for effective cross examination of the complainant.

1 0 . Accordingly, the petition in allowed to the extent as indicated hereinabove.