Gujarat High Court
Pareshbhai Himmatbhai Katrodiya vs State Of Gujarat on 20 February, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/CR.MA/10756/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10756 of 2019
With
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of
2019
In R/CRIMINAL MISC.APPLICATION NO. 10756 of 2019
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PARESHBHAI HIMMATBHAI KATRODIYA
Versus
STATE OF GUJARAT
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Appearance:
MR.MRUDUL M BAROT(3750) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MOKSHA THAKKAR, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI
Date : 20/02/2020
ORAL ORDER
1. This application under Sub Section (4) of Section 378 of the Code of Criminal Procedure, 1973 (herein after referred to as 'the code') is filed seeking special leave appeal against the judgment and order of acquittal passed by the learned 11 th Additional Sr. Civil Judge and Additional Chief Judicial Magistrate, Surat dated 18.02.2019 in Special Criminal Case No.4650 of 2013 whereby in a complaint filed u/s. 138 of the Negotiable Instruments Act (herein after referred to as 'the Act'), by the applicant, respondent No. -2 - original accused came to be acquitted by the trial Court.
2. Mr. Mrudul Barot, learned advocate for the applicant Page 1 of 5 Downloaded on : Mon Jun 15 02:46:28 IST 2020 R/CR.MA/10756/2019 ORDER submitted that the impugned judgment and order passed by the trial Court suffers from basic infirmities as applicant himself is a proprietor of Jalaram Textile in whose name cheque in dispute was issued, accused could not have been acquitted on the ground that Pareshbhai Himatbhai Katrodiya is not a payee. Drawing attention to the reasons assigned by the trial court in para 14, he has submitted that non production of any documentary evidence to show that he is a proprietor of Jalaram Textile will not entail the acquittal of the accused, for which, he is relying upon a decision in case of Shankar Finance & Investments vs. State of Andhra Pradesh reported in 2009 (1) GLH 297, more particularly para 7 and 8 thereof for the preposition that once the complaint is filed in the name of payee, then the requirement of Section 142 of the Act is fulfilled. He further submitted that the complaint filed by the proprietor of Jalaram Textile is in accordance with Section 142 of the Act and, therefore, the order of acquittal could not have been passed by the learned Magistrate on that ground.
3. Considering the submission and para 14 of the impugned judgment, it is clear that Jalaram Textile is the payee where applicant claims to be proprietor of it. Not only that complaint is not filed by the payee but it is filed by Pareshbhai H. Katrodia, who claims to be proprietor of Jalaram Textile. Thus one thing is certain that Pareshbhai is neither the payee nor the holder in due course of cheque in question and, therefore, he could not have filed Page 2 of 5 Downloaded on : Mon Jun 15 02:46:28 IST 2020 R/CR.MA/10756/2019 ORDER complaint in his name and there is not a single document produced and proved by him to prove his case that he is the sole proprietor of Jalaram Textile, who is payee in this case. Not only the complaint came to be filed in an individual name without producing any material in the form of documentary evidence or in any other form with regard to proprietorship, while recording the order of acquittal, learned trial Judge has also relied upon a decision of the Supreme Court in the case of Milind Shripad Chandurkar vs. Kalim M. Khan and Anr. reported in AIR 2011 SC 1588, wherein after considering the decision in case of Shankar Finance (supra), the Supreme Court has held that "person can maintain a complaint provided that he is "payee" or "holder in due course" of cheque." Since the cheque is in the name of firm, the applicant cannot claim to be a payee of cheque or holder in due course unless it is established that cheque was issued in his favour or that he is sole proprietor of a concern, in whose name cheque is issued. Mere assertion, without any contemporaneous record produced and proved to support that claim, that he is proprietor of payee Jalaram Textile cannot be accepted.
3.1 Considering the aforesaid decision, it is clear that applicant has miserably failed to point out any nexus or connection by adducing any reliable evidence whatsoever, worth the name, with the said concern i.e. Jalaram Textile. If that is so, irresistible conclusion in this case is reached by the trial Court acquitting the Page 3 of 5 Downloaded on : Mon Jun 15 02:46:28 IST 2020 R/CR.MA/10756/2019 ORDER accused requiring no interference and, therefore, special leave to appeal is required to be refused.
4. Mr. Mrudul Barot, learned advocate has filed Criminal Misc. Application No.1 of 2019 in this application for leave to appeal seeking permission to adduce additional evidence u/s. 391 of the Code of Criminal Procedure, 1973 (herein after referred to as 'the Code') allowing production of account opening form, submitted to the Bank where applicant Pareshbhai has singed as proprietor of Jalaram Textile addressed to Surat Mercantile Bank. 4.1 The said application cannot be entertained as it has been filed at such a belated stage, that too, after a year of acquittal order is recorded. Seeking permission to place document on record as evidence in the Appeal does not dispense with proof of it. At the same time, the said document was in existence when trial proceeded and concluded. The power u/s. 391 of the Code is akin to order XLI Rule 27 of the Civil Procedure Code, 1908. Despite ample opportunity to the complainant, he has not produced and proved that document before the trial Court. It is not the document which was not within his knowledge or could not, after exercise of due diligence, be produced. Again it is is not the case that the court is unable to pronounce judgment without the said document produced and proved. The said documents is again not a public document, the certified copy of which would be admissible in Page 4 of 5 Downloaded on : Mon Jun 15 02:46:28 IST 2020 R/CR.MA/10756/2019 ORDER evidence, merely on production there of, in view of Section 77 of the Evidence Act, 1872. Over and above that mere production of the application form for opening a bank account claiming to be proprietor of that concern can never be a proof of applicant being proprietor or sole proprietor of that concern itself. 4.2 Thus said application praying for permitting additional evidence is rejected.
5. In view of aforesaid, this application for special leave to appeal is rejected.
(UMESH A. TRIVEDI, J) DRASHTI K. SHUKLA Page 5 of 5 Downloaded on : Mon Jun 15 02:46:28 IST 2020