Gujarat High Court
Kanshi Mohanshi Rathod vs State Of Gujarat & on 20 November, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3107/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 3107 of 2012
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KANSHI MOHANSHI RATHOD....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR CHETAN K PANDYA, ADVOCATE for the Applicant(s) No. 1
MR MAULIK VAKHARIYA, ADVOCATE for the Applicant(s) No. 1
MR JV JAPEE, ADVOCATE for the Respondent(s) No. 2
MRS HANSA PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/11/2014
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicant - original accused seeks to challenge the legality and validity of the order dated 23 rd July 2012 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar, below Exh.29 in Criminal Appeal No.15 of 2011.
The applicant before me is a convict accused of the offence under Section 138 of the Negotiable Instruments Act. The respondent no.2 had lodged a complaint under Section 138 of the Negotiable Instruments Act for dishonour of a cheque bearing No.928773 for the amount of Rs.89,000=00 issued by the applicant herein.
Page 1 of 9R/SCR.A/3107/2012 ORDER It appears that the trial Court, vide judgment and order dated 20th January 2011, convicted the applicant of the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of two years with fine of Rs.10,000=00.
Being aggrieved and dissatisfied with the order of conviction, the applicant has filed an appeal being Criminal Appeal No.15 of 2011 in the Sessions Court. During the pendency of the appeal he filed an application Exh.29 to lead additional evidence under Section 391 of the Code of Criminal Procedure. The basis of such application appears to be that the disputed cheque is of a cheque-book issued by the Kachchh Gramin Bank and he had no account maintained with such Kachchh Gramin Bank.
To a very pinpointed question put to Mr.Pandya, whether any foundation had been laid by the accused before the trial Court so far as the defence which he wants to put forward by way of additional evidence is concerned, Mr.Pandya has been fair enough to admit that no such foundation had been laid before the trial Court. It appears that the applicant did not even give reply to the notice which was issued to him under Section 138 of the Negotiable Instruments Act, although his case appears to be that he had not received the notice.
The appellate court adjudicated the application Exh.29 and made the following observations :
"4. I have gone through the application at Exh.29 objections filed by the complainant at Exh.30 and the arguments submitted by the appellant/accused at Page 2 of 9 R/SCR.A/3107/2012 ORDER Exh.34. As per the submission of the accused, in the statement recorded by the Trial Judge under Section 313 of Cr.P.C., question was asked to the accused that whether he wanted to examine any witness in support of his defence, the learned Judge was answered as yet at the initial stage and that after by over-writing the answer, it was answered as no. Thereafter, in further question asked to the accused, whether accused wanted to examine any witness, the accused himself has answered as yes. He has further argued that no account was opened in the Kutchhi Gramin Bank and he had never received any cheque book from the Dena Gujarat Gramin Bank. That he had opened his account in the Sabarkantha Gandhinagar Gramin Bank and the cheque book was issued from cheque No.1212926 to cheque No.1212950 from the Prantij Branch. That the five cheques were handed over to the complainant by putting the signature in blank form. That there was no question of requesting to any fresh cheque book to the bank concerned. That it was necessary to call the officer of the Dena Gujarat Gramin Bank, who is familiar with the record of the bank. That the economic condition of the accused was not sound and therefore, he was unable to engage any advocate. He was ignorant with provisions of law and he could not cross-examine the complainant in a proper way and hence, no correct fact was put before the Trial Court. In absence of the advocate of the accused he was not given proper opportunity, that the fair trial is the foundation in criminal trial and the case would be decided on merits. Therefore, he should be permitted to examine the witnesses from the Dena Gujarat Gramin Bank by permitting to record further evidence. He further requested to recall the complainant for further cross- examination and permit him to examine his witnesses in support of his defence.
5. The other side, complainant has strongly objected the application.
6. To arrive at a correct conclusion, I have examine the record of the Trial Court. The complainant filed his complaint under Section 138 of the Negotiable Instruments Act. It transpires from the record that on the date of lodging the complaint certain documents were produced on record. On receiving it, notice was issued by the Court. The present appellant/accused was remained Page 3 of 9 R/SCR.A/3107/2012 ORDER present before the Trial Court by engaging an advocate, filed his vakalatnama at Exh.4. Certain exemption reports were submitted by the learned advocate appearing for the accused, before the Trial Court. An affidavit, examination-in-chief of complainant was produced vide Exh.10 and he was duly cross-examined by the learned advocate appeared for the accused. Vide Exh.11 certain documents were produced in a list. Number of times the accused remained absent before the Trial Court and learned Trial Judge was pleased to issue non-bailable warrant against the accused vide order passed below Exh.32 to 37, 40, 42, 43, 44 etc. Accused remained absent before the Trial Court and number of times exemption report was submitted by the learned advocate for the accused. Another learned advocate was engaged by the accused only for cancelling the warrant and vakalatnama was filed at Exh.48. Learned Trial Court was pleased to cancel the warrant as and when requested by the accused. Again accused has engaged a fresh advocate and filed his vakalatnama vide Exh.50. Written arguments submitted from complainant at Exh.51 and closing pursis filed by the learned advocate for the accused vide Exh.52 on 17.01.2011 declaring that no further witnesses were to be examined by the accused, and the date of the judgment was filed by the learned Trial Judge. Pursis was passed by the learned advocate for the accused vide Exh.54 on 20.01.2011 that the accused was absent before the Court and he has no objection if the judgment would be declared by the Court, and in absence of the accused the judgment was declared by the learned Chief Judicial Magistrate, Himmatnagar on 20.01.2011. The accused had ample opportunity to cross-examine the complainant when he had filed his affidavit, examination-in-chief and it was not correct that no advocate was engaged by the accused due to his poor economic condition before the Trial Court. The record itself speaks that thrice advocate were engaged by the accused and they had filed their vakalatnama before the Trial Court. Accused had ample opportunity to examine any witnesses in support of his defence. Rojkam of the Trial Court speaks that after recording the statement of the accused under Section 313 of the Cr.P.C., number of times the learned Trial Judge was pleased to adjourn the matter in the interests of justice as accused was not present before the Trial Court to support the defence. The record would not Page 4 of 9 R/SCR.A/3107/2012 ORDER speaks false against the version of the accused. The opportunity available to the accused was not availed by him before the Trial Court and it is impressed that he had tried to prolong the matter by remaining absent. Number of times opportunity was given to the accused to examine his witness, but he thought fit to remain absent before the Trial Court and however, opportunity available to him to examine any witness in support of his defence. Ultimately, on request made by the complainant non- bailable warrant was issued. The present accused has never cared to remain present before the Trial Court regularly and therefore, as discussed above, number of times non-bailable warrants were issued against the accused to secure his presence. All the defence which was available to the accused could have been availed by him at the time of cross-examination of the complainant. At this stage, he cannot make any grievance before this Court that no opportunity was given to him and therefore, the complainant should be recalled for further cross-examination and witnesses should be permitted to examine. The intention of the accused appears that he wanted to prolong the matter. Of course, under Section 311 of Cr.P.C., the Court is given a discretion, that has to be exercised on sound judicial principles. It must be vary of attempt belatedly undertaken to decredit the witness. It must also be seen whether it is not to make the witness eat his/her words, after he or she had been won over. These and other matters must certainly engage the attention of the Court, before permission is granted to re- examine a witness, who has already been examined. From the record it appears to this Court that the evidence sought to be brought out on further examination is essential for a just decision of the case depending upon the fact and circumstances of the case."
Having heard the learned counsel appearing for the parties and having gone through the impugned order, the relevant portions of which have been quoted above, I do not find any error, not to speak of any error of law, said to have been committed by the learned Sessions Judge in rejecting the application. No ground is made out for interference in exercise of my supervisory jurisdiction under Article 227 of the Page 5 of 9 R/SCR.A/3107/2012 ORDER Constitution of India.
Section 391 of the Code of Criminal Procedure reads as under :
"391. Appellate Court may take further evidence or direct it to be taken.
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court. Its manifest object is the prevention of a guilty man's escape through some careless or ignorant proceedings of a trial Court or the vindication of an innocent person wrongly accused where the trial Court through some carelessness or ignorance has omitted to record the evidence of the circumstances essential to the elucidation of the truth. Being an exception to the general rule the powers under it must always be exercised with circumspection, and the doing of Page 6 of 9 R/SCR.A/3107/2012 ORDER justice should be the goal invariably aimed for.
The Supreme Court in the case of Rajeshwar Prasad Misra v. State of West Bengal and another, reported in AIR 1965 SC 1887, has observed at para 9 as under:
"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 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."
This decision also lays down as under:
"The Code does not make difference between the ambit of an appeal from a conviction and that of an appeal from an order of acquittal except that in the former case the appeal is as of right and lies to Courts of different jurisdiction depending on the nature of sentence, the kind of trial and the Court in which it was held, whereas an appeal in the latter case can only be made to the High Court by the State Government or by a complainant (where the case is stated on a complaint) with the special leave of the High Court. Such appeals lie on a matter of fact as well as a matter of law (except in trials by jury). The procedure for dealing with the two kinds of appeals is identical. The Appellate Court's powers in disposing of the appeals, are in essence the same, though indicated Page 7 of 9 R/SCR.A/3107/2012 ORDER separately in Section 423(old). Section 428(old) which occurs in Chapter XXXI which deals with appeals, speaks of any appeals under that Chapter. Section 428 clearly applies to appeals against acquittal under Section 417(3)."
Therefore, power under Section 391 can be exercised in both types of cases i.e., appeal from an order of acquittal and appeal from an order of conviction. It also lays down that the word 'necessary' appearing in Section 391 does not import that it is impossible to pronounce judgment without the additional evidence. Additional evidence may be taken for the just decision of the case. It also lays down that the words of Section 391 do not restrict to the nature of evidence, either substantial or formal. Thus, the necessity for taking additional evidence must be determined on the particular facts of each case and no exhaustive list can be given as to in which cases the powers under Section 391 should be exercised.
Chitaley's Commentary on the Code of Criminal Procedure (Edn.2) at p.2341 adds:
"There may be many cases where judgment can be pronounced without any additional evidence, but there are cases where it is necessary as a general measure of justice to record additional evidence. The necessity for taking additional evidence under this section must be determined on the facts of each case. But it has been held that the necessity for additional evidence must be apparent from the record in the case and must not be derived from external information. The discretion vested in the Court of appeal should not be exercised arbitrarily, but only when the interests of justice demand such a procedure. No hard and fast rule can, however, be laid down. The appellate Court will not exercise the power under this section when there is no evidence at all; but where there is some prima facie evidence bearing upon Page 8 of 9 R/SCR.A/3107/2012 ORDER the guilt or innocence of the accused, the appellate Court may act under this section."
Mr.Pandya has placed reliance on a decision of this case in the case of Gautambhai Bababhai @ Shantibhai Patel v. State of Gujarat and another, reported in (2012)2 GLR 1073. I have considered the decision. There cannot be any dispute as regards the proposition of law explained. However, the decision is of no avail so far as the case in hand is concerned.
For the foregoing reasons, this petition fails and is hereby rejected. It is needless to clarify that the appeal shall be decided on its own merits without being influenced by any of the observations made by this Court in this order. The observations made by this Court in this order are relevant only so far as the challenge to the impugned order is concerned.
(J.B.PARDIWALA, J.) MOIN Page 9 of 9