Gujarat High Court
Chikeshbhai Kantilal Shah vs State Of Gujarat on 20 November, 2024
NEUTRAL CITATION
R/SCR.A/2801/2024 ORDER DATED: 20/11/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2801 of 2024
With
CRIMINAL MISC.APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/SPECIAL CRIMINAL APPLICATION NO. 2801 of 2024
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CHIKESHBHAI KANTILAL SHAH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Applicant(s) No. 1
MR.PRASHANT B SHARMA(7028) for the Respondent(s) No. 2
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 20/11/2024
ORAL ORDER
1. The present petition is file by the present petitioner - original accused seeking for the following reliefs:
"(A) For the reasons stated hereinabove and such other as may be advanced at the time of hearing of this petition, the Petitioner above-named most respectfully prays that:
This Hon'ble Court may be pleased to pass order calling upon records and proceedings of Criminal Case No.1127 of 2014 and be pleased to quash and set aside the impugned order dated 29.03.2019 passed by learned Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.1127 of 2014 (Annexure-A) and further may be pleased to direct the learned Metropolitan Magistrate Court to recall the witness Nileshbhai Dineshbhai Mehta;Page 1 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024
NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined (B) Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay the further proceedings of Criminal Case No.1127 of 2014 pending before learned Additional Chief Metropolitan Magistrate, Ahmedabad;
(C) xxx."
2. Brief facts of the case as per the case of the petitioner in this petition are as under:
2.1 The petitioner is original accused of Criminal Case No.1127 of 2014 filed before learned Metropolitan Magistrate Court, Ahmedabad under provisions of Section 138 of the Negotiable Instruments Act. The respondent No.2 herein is the original complainant. It is the case of the complainant that the present petitioner has taken money on interest from respondent No.2 herein, his father and his brother to the tune of Rs. 13,38,000/ in total and for returning the same, the petitioner had given three cheques, each of Rs.4,46,000/- along with notarized Kabulatnama dated 24.06.2011. It is the case of the complainant that the said cheques, when deposited, were dishonoured on 24.06.2014 with endorsement of "insufficient balance". The respondent No.2, therefore, issued statutory notice to the petitioner under the provisions Page 2 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined of Section 138 of the Negotiable Instruments Act. 2.2 It is case of the present petitioner that the entire version of the complainant is false and fabricated, and the entire amount that had been borrowed from the complainant and his father and brother for the purpose of business were returned long back by the petitioner and there was no legally enforceable debt in favour of the complainant. Kabulatnama, on which the complainant has relied, was signed by the present petitioner under the coercion and pressure and the amount, which has been borrowed, was already repaid to the complainant long back. Therefore, on 14.06.2014, a legal notice was issued by the petitioner to the complainant respondent No.2 herein for restraining him from depositing the said cheque in question. All these facts have been brought on record by reply of petitioner given to the statutory notice given by the complainant. That complainant has filed his affidavit of examination in chief and was also cross-examined. The complainant has vaguely just denied the fact that the amount borrowed from him and his father and brother were repaid long back. That the complainant has produced list of documentary evidence in support of his case. It is the case of the petitioner in this petition that the petitioner has, in support of his case, also produced oral as well as documentary evidence which includes examination of Page 3 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined four witnesses, viz. (i) Nileshbhai Dineshbhai Mehta, an employee of Colour Mercantile Cooperative Bank Limited in which the complainant holds account in which the repayment of amount have been deposited, (ii) Rajesh Hargovandas Shah, (iii) Hiren Jayantilal Shah and (iv) Shivkumar Notary. The Petitioner has also produced on record statement showing deposit of money in the account of complainant with Colour Mercantile Cooperative Bank Limited. The Petitioner has also produced statement of his account maintained with Nutan Nagarik Sahakari Bank Limited. That the petitioner thereafter filed closing purshis on 20.02.2019. The Petitioner states that however the Petitioner is willing to recall witness, viz Nileshbhai Dineshbhai Mehta, who was working with Colour Mercantile Cooperative Bank Limited, to prove that complainant Respondent No.2 has wrongly denied the fact that amount have not been repaid by the Petitioner and, therefore, to prove the said point, which is very crucial to the entire controversy. The Petitioner wants to recall the said witness Nileshbhai Dineshbhai Mehta and, therefore, had filed an application on 01.03.2019. However, the said application for recalling of the witness was rejected by impugned order. Thereafter, the impugned order dated 29.03.2019 was assailed by the Petitioner, by way of filing Criminal Revision Application being Criminal Revision Application No.143 of 2019 before Ld. City Civil and Session Court, Ahmedabad, Page 4 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined whereby the learned City Civil and Sessions Judge, Ahmedabad was pleased to reject the said application vide order dated 02.08.2019. Being aggrieved by the aforesaid order, the present petitioner preferred an application before this Court being Special Criminal Application No.8260 of 2019, whereby this Court, vide order dated 29.08.2019, issued notice and granted interim relief.
2.3 It is further the case of the present petitioner that the respondent No.2 herein has also filed an application for vacating interim relief being Crma No. 1 of 2023. 2.4 It is further the case of the present petitioner in this petition that the said interim relief granted vide order dated 29.08.2019 came to be extended time and again. Thereafter, on 17.02.2023, this Court was after hearing the parties was admitted the said matter and extend the interim relief. That, time and again the matter was listed. Lastly, the matter was listed on 15.02.2024, this Court has rejected the said Special Criminal Application on the ground that the Criminal Revision Application preferred by the present petitioner before the learned City Civil and Sessions Court was not maintainable in view of the fact that the said Revision Application was preferred against order dated 29.03.2019 and the said order being interlocutory in nature, so as per Page 5 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined Section 397(2) of Cr.P.C. any Revision Application against interlocutory order will not be maintainable and consequentially, any application challenging the said very order, will also not be maintainable. In view of the said very fact, this Court has dismissed the said Special Criminal Application No.8260 of 2019. This Hon'ble has not examine the merits and demerits of the matter while rejecting the Special Civil Application No. 8260 of 2019. 2.5 It is further the case of the present petitioner in this petition that in view of the fact that the Revision Application was not maintainable before the learned Sessions Court, the said Special Criminal Application No.8260 of 2019 was rejected and, therefore, the present petitioner was left with no other option rather than preferring the present petition before this Court challenging the impugned order. That the Special Criminal Application came to be filed by the petitioner in year 2019 and the same was dismissed on 15.02.2024 on the ground of non-maintainability of Revision application preferred before Ld. Sessions Court, so therefore there was no deliberate delay on part of petitioner. Hence, this petition.
3. Heard Mr. Mrugen Purohit, learned advocate for the petitioner, Mr. Prashant Sharma, learned advocate for the Page 6 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined respondent No.2 - complainant and Mr. Manan Mehta, learned APP for the respondent - State.
4. Mr. Mrugen Purohit, learned advocate for the petitioner has submitted that the petitioner has filed an application on 01.03.2019 by praying to the Court to open the stage for evidence with a view to recalling one witness. That application for recalling of one witness from Colour Mercantile Co-operative Bank Limited is rejected. He has also submitted that the Court has not given any cogent reasons for rejecting the application and has decided the said application in very casual manner by way of cryptic order by only assigning the reason that the application is given at the belated stage and, therefore, the application is not required to be considered. In support of his submission for the purpose of Section 311 of the Code of Criminal Procedure, he has relied upon the decision of the Hon'ble Apex Court in the case of Rajendra Prasad vs. Narcotic Cell reported in (1999) 6 SCC 110, more particularly, paragraph Nos.8 to 12 are relevant and the decision of this Court in the case of Nitin Vasantlal Keshwani vs. State of Gujarat reported in 2023 (0) AIJEL-HC 248785, more particularly, paragraph Nos.15 and 16 are relevant and has submitted that considering these two decisions and taking into account the order passed by the trial court, this is a fit case where this Page 7 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined Court should interfere in the impugned order by giving proper opportunity and by allowing the application under Section 311 of the Cr.P.C. In the alternative, he has prayed that this Court may direct the trial court to re-consider the application, which is decided by the trial court vide order dated 29.03.2019 in Criminal Case No.1127 of 2014.
5. Mr. Prashant Sharma, learned advocate for the respondent No.2 - complainant has strongly objected the submissions made by learned advocate for the petitioner and has submitted that the Court has rightly come to the conclusion by recording the relevant facts in the order that the petitioner is interested in delaying the proceeding. Furthermore, he has submitted that once the petitioner has availed the opportunity to examined the witness, such application filed at belated stage under Section 311 of the Cr.P.C. is nothing but a dilatory tactics and also such application is also not required to be considered as it amounts to filling the lacuna. Hence, he has submitted that the present petition is required to be dismissed as no genuine cause is made out for considering such application.
6. Mr. Manan Mehta, learned APP for the respondent - State has also supported the submissions made by learned advocate for the respondent No.2 - complainant and has Page 8 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined further submitted that essentially, the disputed is between the two private parties, hence, this Court may pass appropriate order.
7.1 I have considered the rival submissions made at the bar by the respective parties. I have perused the materials available on the record. It is fruitful to refer the provisions of Section 311 of the Criminal Procedure Code, 1973, as under:
"Section 311 in The Code of Criminal Procedure, 1973:-
311. Power to summon material witness, or examine person present.
- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
[311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006).]
- If a Magistrate of the first class is satisfied that, for the purposes of any investitgation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the Page 9 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:
Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]"
7.2 It is unfortunate that the matter is pending before this Court though it is filed in the year 2024, earlier it is challenged before the other forum where the impugned order is of the year 2019 and Criminal Case is of the year 2014.
The impugned application is for recalling of one witness from Colour Mercantile Co-operative Bank Limited, which is rejected. Considering that order, it transpires that only reason is assigned that such application is even at the belated stage.
If it can be considered that such application is even at the belated stage, the Court has not discussed anything in detail except recording some facts about the proceedings, and the Court has not expressed any opinion that why the application on merits is not required to be considered. It is now settled position of law that the application under Section 311 of the Cr.P.C. can be considered at any stage with a view to serve the interest of justice and this Court is of the opinion that the Court should have given opportunity to the parties, of course, by giving specific direction to conclude the process within stipulated time and if the Court could have allowed Page 10 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined this application, probably, the trial of the case would have also been concluded by today. Considering the fact that the trial court has not given cogent and convincing reasons and considering the submissions made at the bar by learned advocate for the petitioner, in this respect, it is fruitful to refer the decision of the Hon'ble Apex Court in the case of Rajendra Prasad (supra), more particularly, paragraph Nos.8 to 12 are relevant, as under:
"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.
9. The very same decision Mohanlal Shamiji Soni v. Union of India, (supra) which cautioned against filling up lacuna has also laid down the ratio thus :
"It is therefore clear that the Criminal Court has ample Page 11 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined power to summon any person as a witness or recall and re- examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
10. Dealing with Corresponding Section in the old Code Section 540. Hidyatullah Jias the learned Chief Justice then was) speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra, [1967] 3 SCR 415 as follows :-
"It would appear that in our criminal jurisdiction, statutory law Confers a power in absolute terms to be exercised at any stage or the trail to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercise the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case."
11. Chinnappa Reddy, J. has also observed in the same tone in Ram Chander v. State of Haryana, AIR (1981) SC Page 12 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined 1036:
12. We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments, The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision, The steps which the trial court permitted in this case for re- summoning certain witnesses cannot therefore be spurned down nor frowned at."
And the decision of this Court in the case of Nitin Vasantlal Keshwani (supra), more particularly, paragraph Nos.15 and 16 are relevant, as under:
"15. The law on the issue of recalling and/or reexamination of the witnesses as contemplated under Section 311 of the Cr.P.C is well settled. The Court before whom the trial or inquiry is pending, by exercising its discretionary powers, at any stage of the proceedings can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined, if his evidence appears to be essentially to a just decision of the case. This Section is in two parts. In the first part, the word used is 'may' and in the second Page 13 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined part is 'shall'. This would means that, the court which is considering the provision for recalling having dictionary authority to recall the witness and/or person, whereas, the second party which is mandatory imposes an obligation on the court to summon and examine or recall or re-examine any person, if his evidence appears to be essentially to a just decision of the case.
16. In light of the settled law and peculiar facts and circumstances of the present case, this Court is of the considered view that, the prayer for recalling the undefined complainant made by the applicant herein is essential to the just decision of the case. The learned trial Court failed to appreciate the facts that in a cheque return case, there is a presumption that the holder of the cheque received the cheque for debt or other liability. In such circumstances, in order to rebut the said presumption, the accused has two remedies - (i) to bring on record the necessary facts to rebut the presumption by eliciting the necessary material from the evidence of the complainant and his witnesses and
(ii) to examine the defense witnesses. In the facts of present case, the applicant complainant vide his letter dated 25.06.2018, intimated his bank to stop payment of the said cheques. Thereafter, the cheques were dishonour and statutory notice dated 26.07.2018 served upon the applicant accused and same was replied on 10.08.2018. In the reply notice, the transaction of advance money was denied. In the notice reply, it has been specifically stated that the cheques were never handed over to the complainant and due to dispute with Mr. Gor, who in turn had given to the Page 14 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined complainant for filing the proceedings. In that view of the matter, upon scrutiny of the cross-examination of the complainant recorded before the trial Court, this Court is of the view that the earlier advocate could not elicit some material questions as the questions undefined asked by him, seems to be general denial, which is not sufficient to rebut the presumption. Thus, the argument advanced that change of advocate in the case is not only reason for preferring the recalling application is having some merits. The learned trial Court failed to appreciate the provisions of N.I. Act and defense available for the applicant accused while determining the application for recalling."
7.3 Considering the fact that normally, it is expected that the Court should pass precise order, but of course, by giving proper reasons. Reasoning is art of any judicial order passed by the Judicial Officer, from which, the higher forum can appreciate that what are the facts and which provisions of law are in favour of the party and in whose favour, the order is passed while the matter is decided by the Judicial Officer and, therefore, the Court can appreciate whether the reasons assigned by the Court are proper considering the facts and circumstances of the case.
7.4 In the present case, the Court has not given proper reasons, and therefore, the matter requires consideration. Though objections raised by learned advocate for the Page 15 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024 NEUTRAL CITATION R/SCR.A/2801/2024 ORDER DATED: 20/11/2024 undefined respondents sound genuine, but in the facts and circumstances of the present case, when the Court has failed to consider that why application under Section 311 of the Cr.P.C. is not required to be considered by giving cogent reasons, the impugned order is bad in the eye of law, erroneous and improper and is required to be quashed. Accordingly, the application filed by the present petitioner before the trial court is allowed with further direction that the trial court shall make necessary endeavour to expedite the proceeding, as expeditiously as possible, considering the fact that the matter is pending since the year 2014. It is open for the either of the party to make necessary application before the trial court to expedite the proceeding.
8. Accordingly, the present application is allowed to the aforesaid extent.
9. The impugned order dated 29.03.2019 passed by learned Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.1127 of 2014 is hereby quashed and set aside. Interim relief stands disposed of accordingly.
10. Civil Application is disposed of accordingly.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 16 of 16 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Mon Nov 25 2024 Downloaded on : Mon Nov 25 21:27:50 IST 2024