Gujarat High Court
Ivaluesystech Pvt. Ltd vs State Of Gujarat on 25 August, 2023
NEUTRAL CITATION
R/CR.A/512/2018 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 512 of 2018
With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1
of 2018
In R/CRIMINAL APPEAL NO. 512 of 2018
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IVALUESYSTECH PVT. LTD.
Versus
STATE OF GUJARAT
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Appearance:
HARSHANG H PATEL(7349) for the Appellant(s) No. 1
MS. MAYURI P CHAUHAN(7069) for the Opponent(s)/Respondent(s)
No. 3
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 2
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/08/2023
ORAL ORDER
1. Heard Mr. Harshang Patel, learned advocate for the applicant- original complainant, Ms. Monali Bhatt, learned Additional Public Prosecutor for the respondent State and Ms. Mayuri Chauhan, learned advocate for the respondent nos.2 and
3.
2. This application seeking production of additional document has been filed by the applicant- original complainant under Section 391 of the Code of Criminal Procedure at the stage seeking of appeal permission of this Court to bring on record the Resolution dated 16.5.2023 passed by the applicant company for authorizing Mr. Devang Modi- present applicant to initiate legal proceedings against the respondent - accused under Section 138 of the Negotiable Instruments Act.
Page 1 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined 2.1. This application is preferred in the main appeal filed under Section 378 of the Code of Criminal Procedure where by the appellant has challenged the impugned order dated 19.2.2018 passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instrument Court No.37, Ahmedabad whereby, learned Magistrate acquitting the respondents- original accused for the offence punishable under Section 138 of the Negotiable Instruments.
3. It is submitted before this Court that the learned trial Court has proceeded to record the acquittal of respondents- accused only on the ground that the complainant has failed to adduce the evidence to show that he has been authorized to pursue the proceedings under the Negotiable Instruments Act, though, the learned Magistrate at one stage upon appreciation of the evidence has arrived at a conclusion that disputed cheque was issued by the accused against the legally enforceable debt to the complainant- company. The explanation offered by the applicant is that due to misunderstanding or error on the part of the advocate for the applicant, the aforesaid resolution authorizing the applicant could not be produced on record as evidence before the trial Court. It is further contended that even otherwise the present applicant, who is the Director of the complainant company, is authorized under the Memorandum and Article of Association of company to institute, conduct, prosecute, defend, compromise, withdraw or abandon any legal proceedings by or against the Company or its officers. It is submitted that even otherwise as a Director be heing in charge of affairs of the company, in his capacity as Director of the company deemed authorization is given to him to initiate any Page 2 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023 NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined legal action on behalf of the company.
4.0. At this stage, learned advocate has referred to and relied upon the Memorandum and Article of Association of the Company which is placed on record as Annexure B. By referring to the aforesaid documents, it is further submitted that the order of acquittal has been passed on technical ground whereas the Court has as such accepted the case of the applicant on merits. He, therefore, urged this Court to consider his prayer to remand the matter back to the trial Court and permit him to place on record the aforesaid documents to prove his case beyond the reasonable doubt.
5. Learned advocate for the applicant has also relied upon the following authorities in support of his submissions:
(1). Gautambhai Bababhai @ Shantibhai Patel vs. State of Gujarat and Anr reported in 2012(2) GLR 1073. (2). Jayanti Parshottam Machhi @ Jayanti Parshottam Tandel vs. State of Gujarat and Anr reported in 2015(3) GLR 1978. (3). Zahira Habubulla H Sheikh and Anr vs. State of Gujarat & Ors reported in AIR 2004 SC 346.
6. On the other hand, present application has been vehemently objected by Ms. Mayuri Chauhan, learned advocate for the respondents- accused. She has submitted that though sufficient opportunities were granted by the trial Court, the complainant had failed to adduce such basic document, which otherwise goes to the root of the maintainability of the complaint. She has further submitted that the complainant may not be permitted to bring on record such document at the appellate Page 3 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023 NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined stage to fill up the lacuna once respondents- accused have earned the order of acquittal in their favour. She has further submitted that if the Court is inclined to consider for remand then the opportunity may be granted as per the the provisions of Evidence to meet with such document at the evidence stage.
7. Considering the submissions of the learned advocates for the respective parties and having perused the impugned order as well as documents intend to rely upon by the applicant, this Court is of the view that the appeal requires consideration. Noticing the nature of the proceedings, it would be in the interest of justice that the additional evidence which the original complainant intends to bring on record is permitted to be brought on record. The nature of document goes to the root of the issue which has otherwise been examined by the trial Court. The Hon'ble Supreme Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal reported in 1987(2) GLR 1316 while permitting the applicant to lead the additional evidence held that it is the duty of the Court not only to do justice but also to ensure that justice is being done. Provision of Section 391 of the Code of Criminal Procedure helps the Court to find out the truth by allowing production of documents even at appellate stage as the additional evidence. The examination of the document which is intended to be brought on record bears relevance on the aspects which arose for consideration before the trial Court and is likely to throw light on the controversy involved.
8. Section 391 of the Code empowers the Appellate Court to take further evidence or direct it to be taken. The reading of Section 391 with Section 386(6) of the Code permits the Page 4 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023 NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined Appellate Court to take evidence with an object to appropriately decide the appeal to secure the ends of justice. The scope and ambit of Section 391 fall for consideration before the Hon'ble Supreme Court in the case of Rajeswar Prosad Mishra vs.State of West Bengal and Another reported in AIR 1965 SC 1887. The Hon'ble Supreme Court held that wide discretion is confirmed on Appellate Court to take up additional evidence at Appellate Stage. It further held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The relevant observations are reproduced as under:
"8.These arguments disclose a tendency to read the observations of this Court as statutory enactments. No doubt, the law declared by this Court binds Courts in India but it should always be remembered that this Court does not enact. The two cases of this Court point out that in criminal jurisdiction the guiding principle is that a person must not be vexed twice for the same offence. That principle is embodied in S. 403 of the Code and is now included as a Fundamental Right in Art. 20(2)of the Constitution. The protection, however, is only as long as the conviction or acquittal stands. But the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be) if the trial already held is found to be unsatisfactory or leads to a failure of justice. In the same way, the Code gives a power to the appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessary. The Code thus gives power to the appellate Court to order one or the other as the circumstances may require leaving a wide discretion to it to deal appropriately with different cases. The two cases of this Court deal with situations in which a retrial was considered necessary by the appellate Court. In the case of Abinash Chandra Bose, this Court held that the order for retrial was not justified. In Ukha Kolhe's case too the order for retrial was considered Page 5 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023 NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined unnecessary because the end could have been achieved equally well by taking additional evidence. This Court mentioned, by way of illustration, some of the circumstances which frequently occur and in which retrial may properly be ordered. It is not to be imagined that the list there given was exhaustive or that this Court was making a clean cut between those cases where retrial rather than the taking of additional evidence was the proper course. It is easy to contemplate other circumstances where retrial may be necessary as for example where a conviction or an acquittal was obtained by fraud, or a trial for a wrong offence was held or abettors were tried as principal offenders and vice versa. Many other instances can be imagined. The Legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down. Cases may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on appellate Courts, the limits of that Court's jurisdiction must+ obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt some analogy between the power to order a retrial ind the power to take additional evidence. The former is an extreme step approximately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be 'said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal Page 6 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023 NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. Commentaries upon the Code are full of cases in which the powers under S. 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have ,attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised."
9. In such circumstances, taking pragmatic consideration of the overall matter, this Court is inclined to exercise its powers conferred under Section 391 of the Code. Hence, application seeking permission to bring on record the additional document is hereby allowed. The applicant is hereby permitted to bring on record the aforesaid documents on the record before the learned trial Court.
10. Having held so, in opinion of this Court, the matter is required to be remanded back to trial Court for further consideration so that both the parties get sufficient opportunities to meet with submissions. Hence, the impugned order dated 19.2.2018 passed by the learned Additional Chief Metropolitan Magistrate, Negotiable Instruments Court, 37, Ahmedabad in Criminal Case No.859 of 2015 is hereby quashed and set aside. Appeal is hereby allowed with a further direction that the matter Page 7 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023 NEUTRAL CITATION R/CR.A/512/2018 ORDER DATED: 25/08/2023 undefined is remanded back to the learned trial Court. Let, Criminal Case No.859 of 2015 be restored to its file at the state of recording of evidence of the original complainant. At the same time, it is clarified that upon production of such documents, learned trial Court may follow the procedure prescribed under the Evidence Act and the respondents- accused are also permitted to meet with the evidence which may be led by the original complainant. Let, sufficient opportunity be granted to the respective parties and all the rights and contentions of the respective parties are kept open. Learned advocates for the respective parties have assured the Court to cooperate in the proceedings before the Trial Court and has urged this Court to expedite the proceedings. Considering their submission, learned Trial Court is directed to expedite the conclusion of the Criminal Case preferably within a period of three months from the date of receipt of the present order. In aforesaid terms, present application as well as appeal stands allowed.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 8 of 8 Downloaded on : Sun Sep 17 02:36:41 IST 2023