Rajasthan HC Sets Aside Rejection of Summoning Application, Orders Sharing of Original Criminal Record Between NI Act Court and Commercial Court

The Rajasthan High Court held that a cheque-dishonour accused cannot be denied access to the original interpolated cheque and FSL report for cross-examination merely because the record sits before another court in a parallel proceeding.

The High Court of Judicature for Rajasthan at Jodhpur, in a reportable order dated 16 July 2026, set aside a trial court's refusal to summon the original judicial record of a pending criminal case for use in a Section 138 Negotiable Instruments Act proceeding. Justice Baljinder Singh Sandhu, sitting singly, held that where the very sustainability of a complaint rests on a cheque found to have been interpolated, the accused's right to confront the complainant with the original documents — including the original cheque-book counterfoil and the FSL Report — cannot be defeated on the ground that the same record has been placed before a Commercial Court in a related civil matter. The court devised a practical sharing arrangement so that evidence in neither forum would stall.

The Dispute Before the High Court

The respondent, Praveen Lodha, proprietor of Sh. Rajendra Suri Travels, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Special Judicial Magistrate, NI Act Cases No. 5, Udaipur, alleging dishonour of Cheque No. 33010963 dated 05.01.2017 for Rs. 70,46,032.

The petitioner, Sushma Dayal, proprietor of Salasar Logistics, Udaipur, had a different account of the same transaction. Alleging misuse of the cheque and other illegal acts, she had lodged FIR No. 114/2017 at Police Station Hiran Magri, Udaipur. After investigation, a charge-sheet was filed and the matter was registered as Criminal Case No. 2834/2019 before the Additional Chief Judicial Magistrate No. 4, Udaipur. During investigation, the Investigating Agency had seized the original cheque-book counterfoil bearing the respondent's handwriting and endorsements, along with the original FSL Report, which found the cheque and its counterfoil had been interpolated.

Separately, the same transaction was the subject of a money-recovery suit — Civil Case No. 201/2018 — before the Commercial Court, Udaipur. This High Court, in S.B. Civil Writ Petition No. 21679/2025, had directed that the original judicial record of Criminal Case No. 2834/2019 be sent to the Commercial Court for use during examination of witnesses in that civil proceeding.

The Section 138 complaint was at the stage of the complainant's evidence. Sushma Dayal filed an application dated 22.05.2026 before the NI Act court seeking summoning of the original criminal case record so that she could confront Praveen Lodha with the original documents during his cross-examination.

Why the Trial Court Refused

The Special Judicial Magistrate rejected the application by order dated 30.06.2026. The trial court gave three reasons. The original record had already been summoned by the Commercial Court under the High Court's directions; allowing the NI Act court to call for the same record would amount to overreaching those directions. Certified copies already on record were sufficient. The application appeared designed to delay proceedings, and was accordingly dismissed with costs of Rs. 5,000.

The petitioner challenged this order in S.B. Criminal Miscellaneous (Petition) No. 5778/2026 before the High Court.

The Legal Issue

The core question was whether the trial court, conducting proceedings under Section 138 of the NI Act, was obliged to exercise the power under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — which corresponds to Section 91 of the Code of Criminal Procedure, 1973 — to summon the original criminal record, or whether the existence of parallel proceedings in which that record was already in use provided a sufficient basis for refusal.

Section 94 BNSS empowers a trial court to summon any document or thing necessary or desirable for the purpose of any inquiry or trial. The petitioner's counsel, Mr. Muktesh Maheshwari, argued that calling for the original record fell squarely within this provision and that the trial court's discretion to refuse it was not available in circumstances where the accused's entire defence depended on demonstrating that the cheque was forged. Counsel for the respondent and complainant, Mr. Sameer Pareek and Mr. Saurabh Rajpurohit, contended that certified copies were adequate and that disturbing the record would hamper the Commercial Court trial and override the High Court's earlier directions.

How the Bench Reasoned

Justice Sandhu found the factual position was not in dispute. The only question was whether the trial court's reasons for rejection were justifiable.

The court held that once a trial is proceeding under Section 138 of the NI Act and the original record is required, particularly where the entire case turns on a cheque found to have been interpolated in criminal proceedings, the accused necessarily has the right to call for that record to effectively confront the witness. A photocopy or certified copy cannot serve the same purpose as the original when the very authenticity of the document is what is being contested.

On the parallel proceedings point, the court was direct: just because the record was sent to the Commercial Court on the High Court's directions in the civil writ petition, the petitioner could not be left to suffer. Both trials — the NI Act complaint and the Commercial Court suit — were “equally at par” and the original record was required for a fair trial in both. The court observed that denying the petitioner access would cause serious prejudice and impair the fairness of the trial, and that the accused cannot be deprived of material merely on the ground that parallel proceedings may be affected.

The court drew on the Supreme Court's decision in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, which had delineated the scope of the power under Section 91 CrPC (now Section 94 BNSS). That judgment held that the width of the power is unlimited but carries inbuilt limitations tied to the stage of proceedings, necessity, and desirability. Justice Sandhu applied those principles and found that at the stage of the complainant's cross-examination, the necessity and desirability of the original documents were beyond doubt: “the case is based upon the cheque, which, during the course of investigation, was found to be interpolated, and hence the same goes to the root of the matter and affects the very sustainability of the case.”

The court also noted that the right to a fair trial includes the right of the accused to access materials necessary for effective defence and meaningful cross-examination of prosecution witnesses. Denial of access to relevant documents in the custody of the authorities, which have a direct bearing on the defence, would cause serious prejudice.

Having found that the necessity and desirability conditions were satisfied, the court held that the trial court was obliged to issue the necessary directions rather than refuse the application. The reason given by the trial court — that the record was with the Commercial Court on High Court directions — was “not proper.”

The Practical Arrangement

Rather than simply allowing the petition in abstract, Justice Sandhu crafted a set of directions designed to keep both trials moving. The court noted that the NI Act court and the Commercial Court are both situated within the same District Court campus at Udaipur, which meant there was no issue of transporting the record between locations.

The next date in the NI Act case had been fixed for 20.07.2026. The court directed that on that date, the NI Act court would call for the record of Criminal Case No. 2834/2019 and the Commercial Court would send it for recording of evidence on that day. If evidence was not concluded on that date, the record would be retained by the NI Act court and evidence would continue on a daily basis.

Once the complainant's evidence was complete, the NI Act court was directed to return the record to the Commercial Court promptly, retaining only certified copies of the documents for its own file.

The court also provided for scheduling conflicts: if dates in the Commercial Court and the NI Act court were to clash and the record was required in both simultaneously, the courts were to adjust their dates accordingly. Where the record was not actually required in the Commercial Court on a given date, the Commercial Court was to proceed in accordance with law without waiting for the record.

Order

Justice Baljinder Singh Sandhu allowed S.B. Criminal Miscellaneous (Petition) No. 5778/2026. The order of the Special Judicial Magistrate, NI Act Cases No. 5, Udaipur dated 30.06.2026 — which had rejected the summoning application and imposed costs of Rs. 5,000 — was set aside in its entirety. The three-part direction on sharing the record of Criminal Case No. 2834/2019 between the NI Act court and the Commercial Court, Udaipur was substituted in its place. All pending applications in the matter were disposed of.