Gujarat High Court
Sewang Real Estate Developers Through ... vs State Of Gujarat on 28 March, 2024
NEUTRAL CITATION
R/SCR.A/380/2024 ORDER DATED: 28/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 380 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 382 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 387 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 393 of 2024
With
R/SPECIAL CRIMINAL APPLICATION NO. 399 of 2024
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SEWANG REAL ESTATE DEVELOPERS THROUGH RAJESH GULABSINGH
PARIHAR & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARSHIT TOLIA, SR. ADVOCATE with MR ADITYA J PANDYA(6991) for the
Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR MANAN MAHETA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 28/03/2024
COMMON ORAL ORDER
RULE returnable forthwith. With the consent of learned advocates appearing for respective parties, present petitions are taken up for final hearing today.
[1.0] As common question of law and facts arise in this group of petitions and as such between the same parties and with respect to the similar issue, all these petitions are decided and disposed of together by this common order. However, for the sake of convenience, Special Criminal Application No.380/2024 is treated as a lead matter.
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[2.0] By way of present group of petitions under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioners have prayed to quash and set aside the order passed by the learned 10th Additional Sessions Judge, Vadodara in application under Section 391 of the CrPC, whereby application has been rejected.
[3.0] It is the case of the petitioners that, at the instance of respondent No.2 - original complainant, proceedings under Section 138 of the Negotiable Instruments Act, 1881 (for short "NI Act") came to be filed against the present petitioners, details of which vis-a-vis Special Criminal Application are as under:
SCR.A No. Cheque No. Date of Amount of Criminal Cheque cheque Case No. 380/2024 035162 16.05.2011 1,75,00,000 48442/2011 382/2024 026876 06.05.2011 1,45,00,000 48610/2011 387/2024 035220 21.04.2011 37,50,000 48427/2011 393/2024 035226 11.04.2011 50,00,000 48436/2011 399/2024 035420 05.05.2011 32,10,000 48439/2011 [3.1] It appears that learned 14th Additional Chief Judicial Magistrate, Vadodara has been pleased to convict the present petitioner - accused for the offence under Section 138 of the NI Act and sentenced the petitioner - accused to undergo simple imprisonment for a term of 2 years and ordered to pay fine of Rs.3 Crore and in default of payment of fine, to undergo further simple imprisonment of 3 months. Further, out of the fine Page 2 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined amount, Rs.2.60 Crore is ordered to be paid to the original complainant towards compensation.
[3.2] Being aggrieved and dissatisfied by the judgment and order of conviction, petitioner - accused preferred respective criminal appeals before the learned Sessions Judge, Vadodara and pending the criminal appeals, petitioners preferred application under Section 391 of the CrPC seeking permission to produce additional evidence, which came to be dismissed vide the impugned order.
Hence, present petitions.
[4.0] Heard learned Senior Advocate Mr. Harshit Tolia assisted by learned advocate Mr. Aditya Pandya for the petitioners, learned APP for respondent No.1 - State of Gujarat and learned advocate Mr. Jay Thakkar for respondent No.2 - original complainant.
[5.0] Learned Senior Advocate Mr. Harshit Tolia assisted by learned advocate Mr. Aditya Pandya for the petitioners has submitted that the learned Additional Sessions Judge has committed an error in dismissing the application filed by the present petitioners under Section 391 of the CrPC as material evidence made available to the present petitioners - accused during the pendency of the criminal appeal, which is very much relevant and important to prove the innocence and defence of the petitioner - accused. Further, it is submitted that a transaction took place between the petitioner and respondent No.2 and an Memorandum of Understanding was executed to Page 3 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined purchase 102 Acres of land at Ahmedabad in the year 2010 and different transactions took place in the year 2010. Then, on 06.05.2011, in lieu of the said transaction, petitioner - accused had given two cheques for Rs.1.45 Crore and Rs.1.75 Crore, towards security which came to be dishonored due to insufficiency of funds. Pursuant to the same, legal notice came to be issued under Section 138 of the NI Act and then the complaint came to be filed. Meanwhile, civil proceedings being Commercial Civil Suit No.81/2019 was filed and during the said proceedings, witnesses were cross-examined and in chief-examination and cross-examination on various dates, some admission being made by the respondent No.2 - original complainant, which are relevant to decide the criminal appeal and hence, the petitioner -
accused sought permission to produce the part of said deposition being a public document on record to prove the innocence of accused. The said application came to be dismissed without application of mind by the learned Additional Sessions Judge. After the pronouncement of the judgment, said evidence being available, it is very much relevant to prove the innocence of the accused. He has relied on section 33 of the Indian Evidence Act and submitted that the said evidence is relevant and based on relevant fact. Considering the provision of section 80 of the Evidence Act, the learned Sessions Judge ought to have allowed the said application but learned Sessions Judge has committed an error in dismissing the said application. Learned counsel for the petitioner has also relied on the decision of the Hon'ble Supreme Court in the case of Rambhau and Another vs. State of Page 4 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined Maharashtra reported in (2001) 4 SCC 759 and Sanjay Kumar Singh vs. State of Jharkhand reported in (2022) 7 SCC 247 and has requested to quash and set aside the impugned order and allow the application under Section 391 of the CrPC.
[6.0] Learned advocate for the original complainant has vehemently opposed the present petitions and submitted that, present petitioner - accused wants to kill time. The original proceeding is filed in the year 2011 and he succeeded in dragging the proceeding for more than 10 years. Nonetheless, time and again during the pendency of appeal sought time under the guise of settlement and matter was sent for mediation though the petitioner - accused remained absent and mediation failed and then, once again when the arguments were concluded and matters were kept for pronouncement of judgment, with a view to protract the litigation of appeal pending before the appellate Court, with ulterior motive application under Section 391 of the CrPC was filed, which came to be dismissed. Further, no such alleged dispute or defence being raised during the trial, the evidence recorded in the civil proceeding is having no relation and no nexus though the original complainant is cross-examined at length. Merely recording of evidence in civil matter itself is not a proof and even otherwise appreciation of evidence and the finding of the concerned Court after appreciation of evidence is conclusive but no such dispute being raised during the entire trial of proceedings under Section 138 of the NI Act and even, in the alleged cross-examination of the commercial civil suit under Section 138 of the NI Act are initiated and appeal is pending.
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Except this, entire facts of the undertaking and defence of misuse of cheque in the civil proceeding being denied by the original complainant. Further, the additional evidence sought to be produced by the petitioner having no relevancy. Hence, he has requested to dismiss the petitions.
[7.0] Learned APP has also opposed the petitions and adopted the arguments canvassed by learned advocate for the original complainant and submitted to dismiss the present petitions.
[8.0] I have given thoughtful consideration to the arguments canvassed on behalf of the respective parties.
[8.1] It is an undisputed and admitted fact that before the learned trial Court conviction being recorded based on the evidence produced by the original complainant and witnesses being cross-examined at lengthy by the present petitioner - accused. It is not in dispute that the signature on cheques are not disputed and no proper defence is raised or no any rebuttable evidence being produced on record under Section 138 of the NI Act. Considering various pronouncements and settled position of law, learned trial Court has recorded the conviction and said order of conviction came to be assailed before the learned Sessions Judge by way of criminal appeal. In the proceeding of criminal appeal, petitioner - accused has filed application under Section 391 of the CrPC only stating that in Commercial Civil Suit No.81/2019, oral evidence is tendered by respondent No.2 and cross-examination of the witness which is recorded on 15.09.2021, is very important. But in application under Section Page 6 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined 391 of the CrPC, petitioner - accused failed to show as to which type of specific defence he wants to put forward and what defence he wants to raise is also not clear. Even, the petitioner - accused failed to point out any contradiction between two evidences as the learned Civil Court has not appreciated any evidence and no findings are given on this aspect. Even, learned appellate Court come to conclusion that merely qua transaction one MoU came to be executed and matter is required to be resolved through arbitrator, but the learned counsel for the petitioner failed to show as to how such evidence is relevant and is necessary to be produced on record. It is needless to say that in the proceeding under Section 138 of the NI Act, once signature is admitted and it is proved by the complainant that the cheque was given towards legally enforceable debt or for any other liability then the accused shall have to rebut the said presumption under Section 139 of the NI Act. The said presumption is rebuttable but for that accused shall have to produce the evidence or based on preponderence of probability to rebut the same. Though the complainant is cross-examined at length but no such defence is being put forward or no any question being put or raised. Even, the proposed document also produced in the civil proceeding wherein also, petitioner has denied about the said fact of proposed defence. Merely cheque is given towards security is not only a ground. The petitioner - accused shall have to rebut the said presumption by showing that, no liability of petitioner - accused does exist as on that day. The proceeding under Section 138 of the NI Act is on different Page 7 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined footing. Even, the complainant has not given the reply and petitioner - accused has not raised any probable defence and as the per the law laid down by the Hon'ble Supreme Court in the case of Tedhi Singh vs. Narayan Dass Mahant reported in 2022 LiveLaw (SC) 275, the petitioner - accused shall have to raise probable defence by filing reply or by producing any material based on preponderance of probability. Even, in this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Rajesh Jain vs. Ajay Singh reported in (2023)10 SCC 148. Even, in statements of petitioner - accused under Section 313 of the CrPC also, petitioner - accused has raised various defences and put his case but no such defence is raised. Whatever the defence may be, how to rebut the presumption has been elaborately discussed in paragraphs 27, 28, 29, 34 and 40 of the said decision, which read as under:
"27. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
28. There are two senses in which the phrase 'burden of Page 8 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined proof' is used in the Indian Evidence Act, 1872(Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
29. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
34. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. The rules discussed hereinbelow is common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
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40. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]."
[8.2] Herein, petitioner - accused himself stepped into the witness box and produced documentary evidences also, which were considered after recording the statement under section 313 of the CrPC.
[9.0] Now, in light of the aforesaid legal proposition if the case of the petitioner - accused is concerned, petitioner - accused calls to produce only certified copy of the evidence in the civil proceeding. It is needless to say that the petitioner - accused failed to show any relevancy of the document and learned appellate Court rightly come to conclusion that section 33 of the Evidence Act is not in aid to the present petitioner as the petitioner has failed to show relevancy and not only that the petitioner has not raised any defence and failed to prove any fact as to how the said evidence is relevant. It is needless to say that appreciation of evidence is different. Merely recording of evidence is totally on different footing.
[10.0] So far, section 391 of the CrPC is concerned, learned Page 10 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined
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 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.
[11.0] 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 CrPC should be exercised with care and caution and appellate Court should not Page 11 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined 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."
[11.1] 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 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 Page 12 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined 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."
[11.2] 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 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 CrPC. After recording statement under Section 313 of the CrPC, the petitioner - accused has also produced oral evidence and produced on record of civil proceeding concerning contract for sale including order of Special Civil Application and proceeding of civil suit. Considering all these documents and appreciating the oral evidence tendered by the accused, learned trial Court has recorded the conviction and in that event, this is not a case wherein present petitioner -
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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.
[12.0] Herein, no any ground is found to interfere either with the order passed by the learned appellate Court as it has not committed any 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. Even, the powers under Article 227 of the Constitution are very much limited and as per the law laid down by the Hon'ble Supreme Court in the case of Radhe Shyam vs. Chhabi Nath reported in (2015) 5 SCC 423, wherein it has been observed that the judicial orders of Courts are not amenable to a writ of certiorari under Article 226 and even the scope of Article 227 is different from Article 226.
[12.1] Considering the aforesaid fact, the order of the learned trial Court could be challenged under Article 227 but not under Article 226 of the Constitution of India. Herein, the petitioner - accused has sought the prayer to quash and set aside the order passed below application under Section 391 of the CrPC. Considering the law laid down by the Hon'ble Supreme Court in the case of Radhe Shyam (Supra), the judicial orders of Courts are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. At this Page 14 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024 NEUTRAL CITATION R/SCR.A/380/2024 ORDER DATED: 28/03/2024 undefined stage it is apposite to refer to the decision of the Hon'ble Supreme Court in the case of M/s. Garment Craft vs. Prakash Chand Goel reported in (2020) 4 SCC 181, wherein in paragraph 77 it is held that High Court does not act as a Court of first appeal while exercising jurisdiction under Article 227 and to re- appreciate, re-weight evidence or fact except error apparent face on the record or perversity in findings.
[13.0] 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.
[14.0] In view of the above discussion, the evidence recorded in civil proceeding is not a ground to allow such evidence as an additional evidence, which is yet to be appreciated by the concerned Court and not a conclusive proof. Even, perusing the record it appears that application under Section 391 of the CrPC were filed with a view to protract the litigation with ulterior motive. Hence, present petitions being devoid of any merit, are dismissed. Rule is hereby discharged in each of the petitions. Registry to keep copy of this order in each of the petitions.
(HASMUKH D. SUTHAR, J.) Ajay Page 15 of 15 Downloaded on : Mon Apr 01 20:42:16 IST 2024