- 1 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CRIMINAL PETITION NO. 8639 OF 2025 BETWEEN: SRI. G.M. KUMAR, S/O GANGADARAPPA MUNIDRA, AGED ABOUT 50 YEARS, NO. 68, 5TH CROSS, MAHAGANAPATHI NAGAR, SHIVANAHALLI, RAJAJINAGAR, BENGALURU - 560 010. EX. MANAGING DIRECTOR, EAGLE SIGHT MEDIA PVT. LTD., …PETITIONER (BY SRI. S. BALAKRISHNAN, ADVOCATE) AND: SRI. ASHWIN MAHENDRA, S/O B MAHENDRA, AGED ABOUT 41 YEARS, R/AT NO. 301/10, 36TH CROSS, 7TH C MAIN, 4TH BLOCK, JAYANAGAR, BENGALURU - 560 011 …RESPONDENT (BY SRI. B.R. DEEPAK, ADVOCATE) THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528 BNSS) PRAYING TO SET ASIDE THE ORDER PASSED BY HONBLE XXII A.C.M.M AT BENGALURU IN C.C.NO.4842/2019 Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 DATED 23.05.2025 AND ALLOW THE APPLICATION FILLED UNDER SEC.91 OF CR.PC DIRECTING THE RESPONDENT TO PRODUCE SHARE CERTIFICATE, MINUTES OF BOARD MEETING AND SHARE ALLOTMENT LETTER. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER The captioned petition is filed by the accused assailing the impugned order passed by the learned Magistrate while rejecting the application filed by the petitioner herein under Section 91 of the Cr.P.C. 2. Facts leading to the case are as under: The respondent/complainant has instituted a private complaint under Section 200 of the Code of Criminal Procedure (Cr.P.C.) alleging the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, the ‘N.I. Act’). In the complaint, it is specifically averred that due to certain disputes and differences between the petitioner/accused - 3 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 and the respondent/complainant, the latter made an offer to take over the company by purchasing her shareholdings and settling the liabilities of the creditors who had been introduced by her to the petitioner. 3. It is further asserted that pursuant to a Share Purchase Agreement dated 26.02.2018, one Mr. Ganesh Basavaraj was mutually appointed by the parties as an escrow agent. According to the complainant, as per the terms of the agreement, all cheques and related documents were entrusted to the escrow agent, to be released to the respective parties on 31.07.2018. It is alleged that the respondent/complainant handed over the share transfer forms to the escrow agent, and in return, the petitioner/accused handed over a post-dated cheque drawn in favour of the complainant bearing No. 020811 dated 31.07.2018. 4. The respondent/complainant has filed the present complaint on the ground that the said cheque, when - 4 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 presented for encashment through her banker, Karnataka Bank Limited, Jayanagar 4th Block, Bengaluru, was dishonoured. The cheque return memo dated 25.10.2018 bore the endorsement “PAYMENT STOPPED BY DRAWER.” The complainant states that a statutory notice dated 23.11.2018 was issued, and as the accused failed to comply, the present proceedings under Section 138 of the N.I. Act were initiated. 5. The petitioner/accused has now filed an application under Section 91 of Cr.P.C., seeking a direction to the respondent/complainant to produce certain documents, namely: (i) the original share certificate, (ii) the share allotment letter of the company, (iii) the minutes of the board meeting relating to share allotment, and (iv) the share offer letter. This application has been strongly opposed by the respondent/complainant. 6. The learned Magistrate, after considering the rival contentions, rejected the application, observing that the - 5 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 respondent/complainant has stated that she does not possess the documents in question and that they are not in her custody. 7. Learned counsel for the petitioner, referring to portions of the complainant’s cross-examination, argued that there are specific admissions indicating that the complainant had retained custody of the said documents. It is contended that these documents are vital to the petitioner’s defence and, unless the complainant is directed to produce them, the petitioner’s right to a fair trial and effective defence will be seriously prejudiced. 8. On the other hand, learned counsel for the respondent/complainant has relied upon documents produced along with a memo, including an affidavit sworn by the escrow agent in connection with earlier proceedings before this Court in Crl.P.No.8532/2019. In that affidavit, the escrow agent has stated that the original share certificate had in fact been handed over to the - 6 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 petitioner/accused. It is also pointed out that the escrow agent has been cited as a witness by the complainant. Placing reliance on the judgment of the Hon’ble Supreme Court in State of Orissa v. Debendra Nath Padhi, [(2005) 1 SCC 568 : 2005 SCC (Cri) 415], learned counsel submits that the present application under Section 91 Cr.P.C., filed during the stage of cross-examination of the complainant, is premature and not legally maintainable. 9. Heard learned counsel for the petitioner and learned counsel for the respondent. This Court has carefully perused the complaint, the documents produced along with the memo, and more particularly, the affidavit of the escrow agent. The judgment relied upon by the respondent in Debendra Nath Padhi has also been duly considered. 10. The complaint arises out of a commercial arrangement wherein the petitioner/accused issued a - 7 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 cheque, which was allegedly dishonoured upon presentation. The core issue that arises for consideration is whether the petitioner is entitled, at this stage of trial when the complainant is under cross-examination to invoke Section 91 Cr.P.C. for production of documents from the complainant. 11. The answer to the above question is an emphatic No. The complainant, in addition to examining herself, has clearly cited the escrow agent as one of the witnesses in the list furnished. The documents in question are said to be either in the custody of the escrow agent or have already been delivered to the petitioner. In any case, the availability or authenticity of these documents is a matter that can be tested in the course of trial. As observed in Debendra Nath Padhi (supra), an accused cannot invoke Section 91 Cr.P.C. during the stage of prosecution evidence or during the cross-examination of the complainant. The Hon’ble Apex Court has categorically held that such recourse is available only during the stage - 8 - HC-KAR NC: 2025:KHC:28869 CRL.P No. 8639 of 2025 of defence evidence, and the right under Section 91 Cr.P.C. does not extend to summoning documents for cross-examining prosecution witnesses. 12. In view of the legal position laid down by the Hon’ble Supreme Court, and having regard to the facts of the present case, this Court finds no infirmity or illegality in the order passed by the learned Magistrate rejecting the petitioner’s application under Section 91 Cr.P.C. The petitioner is, however, at liberty to invoke appropriate remedies at the relevant stage of the trial, if so advised, in accordance with law. 13. Accordingly, the criminal petition stands dismissed. All contentions are left open. Any pending interlocutory applications also stand disposed of. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE HDK List No.: 1 Sl No.: 21 CT: BHK