Gujarat High Court
Amitkumar Kiritbhai Doshi vs State Of Gujarat & on 28 April, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4112/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4112 of 2016
With
SPECIAL CRIMINAL APPLICATION NO. 4113 of 2016
With
SPECIAL CRIMINAL APPLICATION NO. 4114 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== AMITKUMAR KIRITBHAI DOSHI....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR MEHULSHARAD SHAH, ADVOCATE for the Applicant(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 MS NISHA THAKORE, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/04/2017 Page 1 of 10 HC-NIC Page 1 of 10 Created On Sat Aug 12 15:38:30 IST 2017 R/SCR.A/4112/2016 JUDGMENT ORAL COMMON JUDGMENT 1 Since the question of law raised is common and the parties are also the same in all the captioned applications, those were heard analogously and are being disposed of by this common judgment and order.
2 For the sake of convenience, the Special Criminal Application No.4112 of 2016 is treated as the lead matter.
3 The respondent No.2, although served with the notice issued by this Court in all the three applications, has chosen not to remain present before this Court either in person or through an advocate and oppose the applications.
4 By this application under Article 227 of the Constitution of India, the applicant - original accused has prayed for the following reliefs:
"9(A) to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order dated 07.05.2016 passed by the learned 9th Additional Sessions Judge, Jungadh below Exh. 28 in Criminal Appeal No.51 of 2014 and thereby by further pleased to allow the application below Exh. 28 preferred by the petitioner for production of additional evidence.
(B) Pending admission, hearing and final disposal of this petition, Your Lordship may be pleased to stay the further proceedings of Criminal Appeal No.51 of 2014.
(C) To pass such other and further orders as may be just and proper in the interest of justice."
5 It appears from the materials on record that there are three criminal cases Nos.137 of 2012, 138 of 2012 and 139 of 2012 registered Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Aug 12 15:38:30 IST 2017 R/SCR.A/4112/2016 JUDGMENT against the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act, as the cheques issued by him in favour of the complainant came to be dishonoured. The Trial Court convicted the applicant herein in all the three cases. In such circumstances, the applicant has filed three Criminal Appeals Nos.51 of 2014, 52 of 2014 and 53 of 2014 respectively in the Court of the learned 9th Additional Sessions Judge at Junagadh. In all the three appeals filed by the applicant herein, three applications Exhibits: 28, 28 and 28 respectively came to be filed under Section 391 of the Cr.P.C. for the purpose of adducing additional evidence . The additional evidence is in the form of certain documents evidencing the exact place of business of the applicant. According to the applicant herein, the notices, which were issued by the complainant under Section 138 of the Negotiable Instruments Act, were forwarded at a wrong address. The complainant knew the correct address, as reflected from the plaint itself of a civil suit filed by the complainant, however, when it came to issue of notices under Section 138 of the Negotiable Instruments Act, the same were sent at a wrong address. In such circumstances, the notices were not received by the applicant. The endorsement, however, on the acknowledgment receipts, is "notice refused".
6 On 27th September 2016, the following order was passed:
1. "These petitions since involve identical questions of fact and law, they are being decided by a common order.
2. The facts in nutshell are taken from Special Criminal Application NO.4112 of 2016.
3. Petitioner is aggrieved by the order passed by learned Additional Sessions Judge, Junagadh on 7.5.2016 in Criminal Appeal No.51 of 2014, whereby it had rejected the application of request of additional evidence. It is the case of the petitioner that respondent No.2 original complainant preferred a complaint under section 138 of the Negotiable Instruments Act.Page 3 of 10
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4. The original complainant respondent No.2 filed a complaint under section 138 of the Negotiable Instruments Act (the N.I. Act for short). The petitioner had given the cheque of Rs.2 lakhs. When deposited by respondent No.2, the same was dishonoured due to insufficiency of funds, and therefore, the complaint came to be lodged after the issuance of the notice through Registered Post A.D. The case came to be filed being Criminal Case No.137 of 2012 before the Court of learned Judicial Magistrate First Class, Visavadar on 19.4.2012.
5. After availing the opportunity, learned Judicial Magistrate First Class,Visavadar vide judgment and order dated 22.4.2014 convicted the petitioner for the offences punishable under sections 138 of the N.I.Act for him to undergo simple imprisonment of one year and also fine of Rs.6,75,000/ was imposed. In default, to undergo, six months of simple imprisonment. The petitioner preferred Criminal Appeal No.51 of 2014 under section 374 of the Code of Criminal Procedure and the Court suspended the sentence and released the petitioner on bail during the pendency of the petition.
6. An application came to be preferred by the petitioner for production of additional evidence under section 391 of the Code of Criminal Procedure. This was given on the ground that the notice is mandatory to be served prior to the filing of any complaint under section 138 of the N.I.Act. The notice was returned with endorsement refused. It was not sent on a correct address and the petitioner was holding the office at a particular point of time which is on the notice. It is the say of the petitioner that unless the additional evidence is permitted to be adduced, the true facts would not emerge. Respondent NO.3 had objected to the same and the Court concerned rejected such an application. The petitioner is before this Court seeking induction of additional evidence taking recourse to section 391 of the Code of Criminal Procedure. It is the say of learned advocate Mr.Shah appearing for the petitioner that A/55,Popular Plaza, Satellite, Shyamal Char Rasta, 132 Foot Ringroad, Ahmedabad is not the address of the present petitioner. He has no connection with this address.
7. According to learned advocate Mr.Shah, on earlier occasion, the communication was addressed to the petitioner by respondent on Hira Panna Shopping Complex, Shop No.3, opposite Management Conclave, Vastrapur, Ahmedabad. He submits that his electricity bills and other documents indicate the presence of the petitioner at Hira Panna Complex. He though is a proprietor of Matangi Industrial Corporation, Matangi Industrial Corporation, at no point of time, had its office at A/55,Popular Plaza. According to him, some other business is working, which is completely unconnected to that of the petitioner. Bearing in mind the fact of pendency of the appeal coupled with the fact that this request has come at a very belated stage, the petitioner shall deposit sum of Rs.50,000/ Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Aug 12 15:38:30 IST 2017 R/SCR.A/4112/2016 JUDGMENT with the Registry of this Court which may be ordered by way of cost, before this Court issues the order of notice.
8. Issue notice subject to deposit of Rs.50,000/(Rupees Fifty Thousand Only) returnable on 7.10.2016. Mr. Ronak Raval, learned Additional Public Prosecutor waives service of notice for and on behalf of respondent No.1 State.
Direct service is permitted."
7 Mr. Shah, the learned counsel appearing for the applicant submits that the Trial Court committed an error in rejecting the applications filed by his client praying for adducing of the additional evidence. Mr. Shah seeks to rely upon two decisions of this Court in the case of Gautambhai Bababhai @ Shantibhai Patel vs. State of Gujarat [2012 (2) GLR 1073] and Rameshbhai Jayendrabhai Modi vs. State of Gujarat [2013 (5) GLR 4317].
8 In Gautambhai Bababhai (supra), a learned Single Judge of this Court held as under:
"9. At the outset, it is required to be noted that the applicant herein has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheques. It is also required to be noted at this stage that that even at the stage of recording Further Statement of the applicant herein - original accused under Section 313 of the Code of Criminal Procedure, it was the specific case on behalf of the applicant herein - original accused that cheques in question do not belonging to him and the same were not drawn from the Bank Account maintained by him and, therefore, the applicant herein - original accused cannot be convicted for the offences punishable under Section 138 of the Negotiable Instruments Act. It is also required to be noted at this stage that in support of the above submission, the applicant herein original accused also produced the Certificate issued by the Manager of the Punjab National Bank, certifying that Bank Account from which the cheques in question were drawn, does not belong to the applicant herein - original accused and it is belonging to the one Mr.Viral Patel. The said Certificate is produced at Exh.51. The applicant herein also produced the statement of Bank Account, from which the cheques in question were drawn and the learned Magistrate has also observed in the said judgement and order of conviction that the said account is belonging to Mr.Viral Patel.
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Unfortunately, for whatever the reason, the applicant herein - original accused did not examine the Manager of the Punjab National Bank to prove the document, which has produced at Exh51 and only on the aforesaid ground, the Magistrate has convicted the applicant herein - original accused for the offence punishable under Section 138 of the Negotiable Instruments Act. That at appellate stage, the applicant herein has submitted application at Exh.24 in Appeal requesting to permit him to lead additional evidence and to examine the Manager of the Punjab National Bank to prove that the Bank Account, from which, the cheques in question were issued and were dishonoured, did not belong to him but it belonged to another person namely Mr.Viral Patel. The aforesaid aspect goes to the root of the matter. Considering Section 138 of the Negotiable Instruments Act, a person can be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, if it is proved that the cheque, which is dishonoured, is issued and signed by the concerned person and from the Bank Account maintained by him. Therefore, on evidence, if it is proved by the applicant herein by leading appropriate evidence that the Bank Account, from which the cheques in question were issued and which were dishonoured, were drawn from the Bank Account not maintained by the applicant herein, the result can be different and the applicant herein - original accused may not be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, it appears to this Court that learned Magistrate ought to have exercised the jurisdiction and ought to have permitted the applicant to lead the additional evidence by examining Manager of the Punjab National Bank to prove his case that cheques in question, which were dishonoured, were not drawn from the Bank Account maintained by him. As stated hereinabove, the aforesaid aspect goes to the root of the matter. Learned Magistrate ought to have appreciated that it affects the conviction of the person and as such by not examining the Manager of the Punjab National Bank at the relevant time, the applicant herein - original accused was not likely to get any advantage or benefit. It was the specific case on behalf of the applicant herein that the cheques in question were not signed by him and cheques in question were not drawn from the Bank Account maintained by him and in support of the said contention, the applicant did produce the Certificate issued by Manager of the Punjab National Bank. If the learned Appellate Court was of the opinion that it was at the belated stage, the Court could have imposed the cost and allowed such application for leading additional evidence to prove the innocence of the applicant herein - original accused rather than dismissing the same on technical ground that the applicant herein could have examined the Manager of the Punjab National Bank, earlier during the trial.
10. Identical question came to be considered by Hon'ble Supreme Court in the case of Mohanlal Shamji Soni (Supra), wherein it is held that power to summon any person as witness or to recall and reexamine him, can be exercised at any stage of proceedings, provided examination of such person Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Aug 12 15:38:30 IST 2017 R/SCR.A/4112/2016 JUDGMENT is essential for just decision of the case and opportunity to rebut should be given to other party whenever new evidence is admitted under Section 540 of the Code of Criminal Procedure. It is further observed and held by the Hon'ble Supreme Court in the said decision that in fact it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 391 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or reexamine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgements happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
While exercising powers under Section 489 of the Code of Criminal Procedure every endeavor should be made to arrive at and to find out the truth and render a just decision. If for any reason, the appellate Court finds either because of the negligence and for any other reason at the relevant time, the evidence is not lead by any other side, the other side can be punished by way of costs, however, the Appellate Court is required to keep in mind that the Court has to find out the truth and arrive at truth and render a just decision. Under the circumstances, it appears to the Court that the learned Appellate Court has materially erred in rejecting the application submitted by the applicant herein - original accused for leading additional evidence and in not permitting to examine the Manager of the Punjab National Bank to prove his defence that the cheques in question were not drawn on the Bank Account maintained by him and he has not committed any offence punishable under Section 138 of the Negotiable Instruments Act. As stated hereinabove, the aforesaid aspect goes to the root of the matter and, therefore, to render just decision, learned Appellate Court ought to have allowed application Exh.24, even on imposing reasonable cost."
9 In Rameshbhai Jayendrabhai Modi (supra), a learned Single Judge of this Court held as under:
"5. On consideration of facts emerging from record and on going through the judgment and order of the learned Judicial Magistrate, it appears that the notice dated 22nd August, 2007 was sent by Registered A.D. Post which returned unserved. It was the case of the accused that from July, 2007 onwards all members of his family had left the house and came back after Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Aug 12 15:38:30 IST 2017 R/SCR.A/4112/2016 JUDGMENT one year. Learned Magistrate records from the evidence of the complainant that in his crossexamination he has accepted about he having quarrel with the accused in July, 2007 and at that time since the accused was heavily indebted, he left the town of Nadiad. In his evidence, the accused also stated about creditors coming to his house and office and in an incident, he had to lodge a police complaint as the creditors had abused and had beaten up his wife and out of fear, they had thereafter left.
5.1 When the applicant was asked whether he wanted to examine any witnesses in his further statement under Section 313 of the Code, he replied in the affirmative that he wanted to examine witnesses. Thus the contention of the applicantaccused was that he wanted to lead further evidence about service of notice, and the same was in the background of abovementioned facts on record. The observation and finding regarding service of notice was that the notice sent by UPC had not returned but one sent by Registered Post A.D. Returned with endorsement not found. The proper service of notice in the proceedings for offence under Section 138 of the Negotiable Instruments Act, 1881 is an important requirement of law, which is emphasised by Courts. The decision in Harman Electronics Private Limited and another Vs National Panasonic India Private Limited [(2009) 1 SCC 720] highlights importance of service of notice in proceedings under section 138 of the Act. It is held and observed that it is one thing to say that presumption is raised where notice is served, but it is another thing to say that service of notice may not be held to be of any significance or may be held to be wholly unnecessary.
5.2 It is further observed that presumption raised in support of service of notice would depend upon facts of each case and that presumption has to be raised on the facts and not on mere hypothesis or surmises. It is emphasised that sending of notice is one of the ingredients for maintaining the complaint under Section 138 of the Act. At the same time it is another thing to say that dishonour of cheque by itself constitutes an offence. In order to prove offence under Section 138 of the Act, ingredients and conditions of the provision are required to be proved. It the notice given by the complainant in accordance with the provisions upon dishonour of cheque and duly served on accused would give rise to cause of action. It is also observed that issuance of notice would not by itself give rise to a cause of action, but communication of notice would.
5.3 In Gautambhai Bababhai alias Shantibhai Patel Vs State of Gujarat and another [2012(2) GLR 1073], this Court held that additional evidence under Section 391 of the Code in appeal has to be allowed in a case where the fact if proved, goes to the root of the matter, or it affects conviction of a person. The said case also arose from the proceedings under Section 138 of the Act and the applicant of that case wanted to lead additional evidence in the appeal by examining Manager of the Bank to prove that the cheques which were dishonoured were not Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Aug 12 15:38:30 IST 2017 R/SCR.A/4112/2016 JUDGMENT signed by him, nor were drawn from the bank account maintained by him. In that case too the Court below taking view that at the time of trial, the applicant was given opportunity to lead evidence.
5.4 It was inter alia observed in Gautambhai Patel (supra), that since the contention of the accused was that the cheques in question did not belong to him and the same were not drawn from his bank account, if such fact is proved, it may end up with a situation where the accused may not be convicted. It was, therefore, reasoned that when the accused wanted to bring such important aspect by leading further evidence, the same was required to be granted. In that case also, it was specific case of the applicantaccused in his further statement recorded under Section 313 of the Code that cheques did not belong to him.
6. The prayer of the applicantaccused for permitting him to lead further evidence on the point of service of notice is required to be appreciated in light of the above legal position and the importance of service of notice. It is an important aspect in the proceedings, which the applicant wants to prove and for that, he wants to lead further evidence. The ultimate criteria for invoking provision of Section 391 of the Code is to accord fair opportunity to the accused in a trial and to see that hands of justice are properly served. Therefore, in the facts and circumstances of the case, application ought not to have been dismissed by the Court below. It is also trite that application under Section 391 of the Code for additional evidence can be considered at a later stage where the facts sought to be proved have their bearing on the ultimate result. In [(2001) 4 SCC 759], it is said by the Apex Court that it is the concept of justice which ought to prevail and in the ultimate analysis, the same would dictate the exercise of powers under Section 391 of the Code. The reasons supplied by the trial Court in rejecting the application that the accused had opportunity during the trial or that application is filed to delay the proceedings do not hold good in light of the facts of the case and in view of the discussion made above."
10 Taking into consideration the order passed by a Coordinate Bench of this Court dated 27th September 2016 referred to above and the two judgments of this Court, the impugned orders are quashed. The applications Exhibits: 28, 28 and 28 in the three Criminal Appeals Nos.51 of 2014, 52 of 2014 and 53 of 2014 respectively pending in Court of the learned 9th Additional Sessions Judge, Junagadh are hereby allowed.
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11 I am informed that pursuant to the order passed by this Court
dated 27th September 2016, the applicant herein has deposited a sum of Rs.50,000/ (Rupees Fifty Thousand only) with the Registry of this Court. It shall be open for the complainant to withdraw the amount. If the complainant appears before the Registrar, then the amount shall be paid to him by an account payee cheque, after proper identification.
12 With the above, all three applications are disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Aug 12 15:38:30 IST 2017