Gujarat High Court
Chirag Anilbhai Desai vs State Of Gujarat on 21 March, 2025
NEUTRAL CITATION
R/CR.RA/32/2025 ORDER DATED: 21/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 32 of 2025
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CHIRAG ANILBHAI DESAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR UVESH M SHAIKH(11313) for the Applicant(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/03/2025
ORAL ORDER
1) By way of this revision application, the applicant has prayed for quashing and setting aside the order dated 22.11.2024 passed by learned 7th Additional Sessions Judge, Surat, below Exh: 21 in Criminal Appeal No. 161/2023, whereby learned Sessions Judge has been pleased to reject the application filed by the applicant under Section 391 of Cr.P.C. for production of additional evidence in the proceedings.
2) Heard Mr. Uvesh M. Shaikh, learned counsel for the applicant, Mr. Hardik Mehta, learned APP for the respondent State and Mr.Premal R. Joshi, learned counsel for respondent No.2.
3) It is the submissions made by learned counsel for the applicant that, the complainant had rented one shop to the applicant in the year 2010 for which the applicant was paying rent and the applicant issued blank cheques to the complainant towards the security at that time; the complainant has misused one of the cheques to file the complaint and therefore, it is necessary to produce the rent agreement executed Page 1 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined between the parties as an additional evidence; that the ld. trial Court has not accepted his defense; further, the cheque was issued as Non- CTS cheque and the operation of which was stopped by the RBI in the year 2018; when the complainant deposited the cheque in the year 2019, it was returned with an endorsement "other reason - NONCTS"
indicating that the cheque was not sent to the accused's bank for clearance and this established that the essential ingredients to constitute an offence under Section 138 of the NI Act are absent in the present case. To substantiate this point, it is imperative to examine the bank officer from the complainant's bank to clarify the circumstances surrounding the cheque's dishonor. Hence, it is necessary to produce the evidence on record and no prejudice is caused to the complainant if the applicant was allowed to be produced additional evidence on record as he was having ample opportunity to cross-examine the witnesses.
4) Ld. APP for the respondent State and the learned counsel for the complainant have opposed the present application, stating that the before the learned trial Court, arguments have been concluded, and the matter has been kept for judgment for the past two months.
However, due to the shortage of stenographers, the judgment could not be prepared. Even today, the matter has been adjourned for the pronouncement of the judgment. It is further submitted that the learned trial Court has concluded that the application filed by the applicant is merely intended to delay the proceedings, and the applicant has not come with clean hands. Sufficient opportunities were provided, and the applicant extensively cross-examined the witnesses. However, the applicant did not produce any documents before the trial Court nor did he dispute any instrument, handwriting, signature, etc. The new grounds raised before this Court are purely Page 2 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined questions of law, which were not raised before the learned trial Court. Therefore, the application should not be entertained.
5) Having heard learned counsel for the respective parties and reviewed the contents of the application at Exh:21, it appears that the applicant seeks to produce a leave and license agreement dated 12.10.2010, which is a notarized document. The applicant also intends to examine a Sales Tax Officer to verify the registration of the firm, the license number, and evidence of payment of license fees, as well as another transaction that the applicant has sought under RTI. Additionally, the applicant wishes to examine Witness No. 2, the Bank Manager of Indian Overseas Bank, Vastrapur Branch, Ahmedabad, and submit the bank statement for the period 01.11.2010 to 31.03.2011 to support his defense. Between 2010 to 2015, the applicant had issued cheques as security, one of which was allegedly misused. The applicant also seeks to examine Witness No. 3, the Bank Manager of SBI, Ghuma Road Branch, because during cross-examination, the witness was unable to answer questions about whether the cheque was sent for clearing due to the absence of original documents. Therefore, the applicant requests to recall the witness for further examination.
6) Upon perusing the record, the learned Revisional Court concluded that in proceedings under Section 138 of the Negotiable Instruments (NI) Act, the accused is required to rebut the presumption. In the complaint, the complainant alleges that the accused had agreed to sell a flat to the complainant. According to the complainant, he paid Rs. 12 lakhs as consideration to the accused and executed an Agreement of Understanding and Power of Attorney with the accused. Due to family issues, the accused requested the complainant to take back the money, return possession of the flat, Page 3 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined and cancel the deal. Accordingly, the complainant received Rs. 3.20 lakhs via RTGS and cash, and a cheque for the remaining amount, which was later dishonored. Based on this, the complaint was filed. A demand notice was issued, and the accused replied, asserting that the cheque was issued as security for a rented shop. However, after reviewing the evidence, the learned trial Court did not accept this defense. The trial Court noted that no lease deed or any proof was produced on record to support the claim of a rental agreement. The defense raised by the accused, suggesting that a lease deed was on record, was purely hypothetical. The trial Court elaborately discussed the defense regarding the rented shop in paragraph 24, based on oral evidence and the cross-examination of witnesses, and for the sake of argument, even if the shop was rented, the defense that the cheque was issued as security was not accepted. The trial Court also considered the conduct of the accused and pointed out that the cheque at Exh:26 was a non-CTS cheque, which was not a valid ground to support the rental defense, especially for a transaction in 2010. In light of these considerations, no prejudice was caused to the applicant, who failed to produce the relevant document despite it being available at the relevant point of time. Even when considering the applicant's defense for producing the additional document regarding the rent agreement, the trial Court, in the absence of the document, elaborately discussed the issue, assuming, for the sake of argument, that the rent agreement was on record. Therefore, no case has been made to permit the production of additional evidence regarding the rent agreement and the examination of other witnesses to prove that the shop was given on rent under a leave and license agreement.
Page 4 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined 7) Regarding the examination of Witness No. 3, the Bank Manager
of SBI, the witness was extensively cross-examined by the complainant, particularly on the issue of the non-CTS cheque. The return memo recorded at Exh:27 mentions the reason for dishonor as 'NON-CTS'. The witness deposed at Exh:75, acknowledging that the account was closed in December 2010, and that he could only verify whether the cheque was sent for clearing after checking the records. In cross-examination, the defense did not ask any questions related to the cheque, only confirming that the cheque at Exh:26 belonged to the branch. The defense did not challenge this evidence despite ample opportunity to do so was given. Consequently, request to recall this witness to fill this lacuna is also not permissible.
8) So far, section 391 of the Cr.P.C is concerned, learned Counsel has relied on the decisions of the Hon'ble Supreme Court in the case of Rambhau and Another (Supra) and Sanjay Kumar Singh (Supra). Insofar as the decision in the case of Rambhau and Another (Supra) is concerned, learned Counsel has submitted that petitioner - accused is not intending to fill up the gap in the prosecution case but Court should consider the concept of justice. It is needless to say that though ample opportunity was given, no any probable defence is raised though the proceeding of civil suit was pending and even, merely recording of evidence is not a ground. This is not a case wherein Court has dismissed the suit and pronounced the final judgment based on the same set of facts and disprove the fact about existence of any legally enforceable debt. So far as reliance placed on the decision of the Hon'ble Supreme Court in the case of Sanjay Kumar Singh (Supra) is concerned, it is based on Order 41 Rule 27 of the CPC wherein true test of production of additional evidence is explained. Merely evidence is recorded itself is not an evidence to Page 5 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined determine or rebut the presumption as witnesses are cross-examined at length by the petitioner - accused and as discussed hereinabove, he has led the evidence before the Court.
9) So far as power under Section 391 of the CrPC is concerned, the Hon'ble Apex Court in the case of State (NCT of Delhi) vs. Pankaj Chaudhary and Others reported in (2019) 11 SCC 575 wherein Hon'ble Apex Court has been pleased to hold that power conferred under Section 391 of the Cr.P.C should be exercised with care and caution and appellate Court should not refer to additional evidence if produced before it to fill up gaps by either side, more so, to reverse judgment of trial Court. In paragraph 25 of the said decision, the Hon'ble Supreme Court has observed and held as under:
"25. The High Court observed that the trial court erred in saying that the accused failed to prove the making of previous complaints against the prosecutrix. While saying so, the High Court referred to certain complaints made against the prosecutrix including the one allegedly given on 21.07.1997 which were produced by the Bar at the time of arguments. The power conferred under Section 391 Cr.P.C. is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 Cr.P.C. Any material produced before the appellate court to fill-up the gaps by either side cannot be considered by the appellate court; more so, to reverse the judgment of the trial court."
10) Further, the Hon'ble Supreme Court in the case of State of Rajasthan vs. Asharam alias Ashumal reported in 2023 SCC OnLine SC 423, while elaborately discussing the scope of section 391 of the CrPC, has clearly observed in paragraph 16 as under:
"16. Both Sections 311 and 391 of the Cr.P.C. relate to power of the court to take additional evidence; the former at the stage of trial and before the judgment is pronounced; and the latter at the appellate stage after judgment by the trial court has been pronounced. It may not be totally correct to state that the same considerations would apply to both situations as there is a difference in the stages. Section 311 of the Cr.P.C. consists of two parts; the first gives power to the court to summon any witness at any Page 6 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined stage of inquiry, trial or other proceedings, whether the person is listed as a witness, or is in attendance though not summoned as a witness. Secondly, the trial court has the power to recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. On the other hand, the discretion under Section 391 of the Cr.P.C. should be read as somewhat more restricted in comparison to Section 311 of the Cr.P.C., as the appellate court is dealing with an appeal, after the trial court has come to the conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can examine the evidence in depth and in detail, yet it does not possess all the powers of the trial court as it deals with cases wherein the decision has already been pronounced."
11) Thus, it is settled law that powers under Section 391 of the CrPC are very restrictive rather than section 311 of the CrPC. Herein, judgment is pronounced by the trial Court and now the matter is at appellate stage for pronouncement of judgment and the petitioner - accused wants to produce additional evidence without showing any reason or relevance of the said evidence. The powers under Section 391 of the CrPC are somewhat restrictive in comparison to powers under Section 311 of the CrPC as the appellate Court is dealing with an appeal after the trial Court has come to conclusion with regard to to the guilt or otherwise of the person being prosecuted. Herein, learned trial Court has been pleased to record the conviction after appreciating the entire evidence at length and considering all defences raised by the petitioner - accused including statement of the petitioner - accused under Section 313 of the Cr.P.C. This is not a case wherein present petitioner - accused is denied fair trial or opportunity to lead the evidence and he is not offered any opportunity to rebut the presumption. Considering the entire defence put forward by the petitioner - accused, learned trial Court has recorded the findings while convicting the petitioner - accused.
12) Herein, no any ground is found to interfere either with the order passed by the learned appellate Court as it has not committed any Page 7 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025 NEUTRAL CITATION R/CR.RA/32/2025 ORDER DATED: 21/03/2025 undefined error apparent on the face of the record or nothing emerges from the reasons assigned by the learned trial Court any palpable, manifest or substantial error in interpretation of law is noticed in the order.
13) At this stage, it is also worthwhile to refer to the decision of the Division Bench of this Court in the case of State of Gujarat vs. Rajubhai Dhamirbhai Bariya reported in 2004 Cri.L.J. 771, wherein it is observed and held that when the parties have been accorded opportunity to lead evidence before the trial Court then additional evidence cannot be taken before the appellate Court.
14) In view of the above, the application does not deserve any consideration and is hereby dismissed.
15) However, considering the nature of the defense and upon perusing the record, it is observed that the learned trial Court has not addressed or assigned any reasons regarding whether an offence under Section 138 of the NI Act is made out, particularly since the defense raised qua instrument/cheque was not dishonored for clearing, as it was not presented for clearing. This issue is a pure question of law, as the return memo on record clearly states 'NONCTS cheque. If the applicant raises this contention before the Appellate Court, the Appellate Court shall decide the same independently on its own merits, without being influenced by the observations made in this order.
(HASMUKH D. SUTHAR,J) SUCHIT Page 8 of 8 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Mar 26 2025 Downloaded on : Wed Mar 26 21:51:56 IST 2025