Gujarat High Court
Dilipbhai Bhagwandas Aswani vs State Of Gujarat on 13 August, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 455 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
To be referred to the Reporter or not ?
Yes
2
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 No
of India or any order made thereunder ?
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DILIPBHAI BHAGWANDAS ASWANI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS SM AHUJA(118) for the Applicant(s) No. 1
MR VIVEK V BHAMARE(6710) for the Respondent(s) No. 2,3
MR VN BHAMARE(1122) for the Respondent(s) No. 2,3
MR HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/08/2024
ORAL JUDGMENT
1. Rule. Learned APP and learned Advocate Mr. Bhamare waive service of notice of rule on behalf of respective parties. By consent, rule is fixed forthwith.
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2. Heard learned advocates for respective parties.
3. The revisionist is the original complainant in a proceeding under Sections 406, 420 and 114 of the Indian Penal Code, which was before the learned Chief Judicial Magistrate, Anand, in Criminal Case No.2403 of 2018, wherein the accused, husband and wife, came to be acquitted by an order dated 30.12.2019.
4. Aggrieved and dissatisfied by the impugned judgment of the learned Chief Judicial Magistrate, Anand; the de facto complainant filed a Criminal Appeal under Section 372 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C'). The present Revision is challenging the order below Exh.11 passed by the learned 4 th Additional Sessions Judge, Anand, in Criminal Appeal No.94 of 2020, where the original complainant as an appellant, had moved the Court under Section 391 of the Cr.P.C., making a prayer to produce additional evidence, stating it to be necessary for the evaluation of the evidence and just decision of the case. The prayer was made to take on record the deposition of Surajkant Shrikant Prasad, who had filed an affidavit in Criminal Case No.824 of 2014, which was under
Section 138 of the Negotiable Instruments Act against the wife of Page 2 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined Surajkant Shrikant Prasad.
5. Respondent Nos.2 and 3, Surajkant Shrikant Prasad and Nitu w/o. Surajkant Shrikant Prasad, are both accused of the proceeding under Sections 406, 420 and 114 of the IPC. They both came to be acquitted in that proceeding in Criminal Case No.2403 of 2018 by the learned Chief Judicial Magistrate, Anand on 30.12.2019. The de- fecato complainant had proposed to place on record the affidavit of the accused of the said matter, who had been examined by the wife as a defence witness in the proceedings under Section 138 of the Negotiable Instruments Act. The de facto complainant had urged before the learned Appellate Court in the acquittal appeal filed under Section 372 of the Cr.P.C. to take the affidavit of the accused, wherein he has stated that he has executed an agreement of sale / Banakhat with the de facto complainant, who was selling his property being Flat No.F/F/12 Shiv Shalin Complex situated at Vidhyanagar, for the amount of Rs.11,00,000/- out of which Rs.6,00,000/- was paid to the accused No.2 - husband by the complainant.
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6. Learned advocate Ms. S. M. Ahuja for the revisionist submitted that the prayer was made under Section 391 of the Cr.P.C. for taking, the affidavit of the accused which was recorded in the proceeding under Section 138 of the N.I. Act, in the Criminal Case No.824 of 2014 to bring it as additional evidence to secure ends of justice and further submitted that the evidence sought to be produced as additional evidence would be necessary to prove the culpability of the accused and submitted that the learned Appellate Court, thus, should have concluded that the additional evidence, which is proposed to be produced is necessary for the dispensation of justice. 6.1. Learned advocate Ms. S. M. Ahuja submitted that the agreement of sale executed by the accused in favour of the complainant supported the case of the complainant, where contents of agreement of sale included the receipt of amount and the execution for the property, where the fact would reveal that the accused have tried to misled the complainant by showing that they were the owner of the said suit property in the year 2013, and with a view to grab huge amount fraudulently from the complainant, had executed the agreement of sale, their intention from the very Page 4 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined beginning was to cheat the complainant.
6.2 Learned advocate Ms. S. M. Ahuja submitted that the said fact is admitted by the accused by way of an affidavit of deposition in Court and therefore, to substantiate the allegation made by the complainant, the prayer was made before the learned Appellate Court under Section 391 of the Cr.P.C. to allow the affidavit of the accused to be placed on record before the Court. 6.3. Learned advocate Ms. S. M. Ahuja submitted that the agreement of sale was produced on record in the criminal proceeding but was not appreciated by the learned trial Judge and therefore, to prove the said execution and the agreement, the facts admitted by the accused in parallel another proceedings under Section 138 of the N.I. Act were the relevant documents to be produced before the learned Appellate Court and therefore, the affidavit of the accused was necessary for just decision. Hence, learned Appellate Court was moved under Section 391 of the Cr.P.C. for taking the same as an additional evidence.
6.4. Ms. S. M. Ahuja relying upon the judgment in the case of Brig Page 5 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined Sukhjeet Singh (RETD) MVC V/s. State of Uttar Pradesh & ORS. reported in 2020 2 SCC (Cri) 434, referred to the power of the Court under Section 391 of the Cr.P.C. and submitted that the additional evidence is required to be taken at the appellate stage if it is necessary to secure the ends of justice. It is submitted that the evidence, which is proposed to be produced is one which would lead to conviction of the accused and non-acceptance of such evidence would amount to failure of justice.
6.5. Learned advocate Ms. S. M. Ahuja referring to Section 33 of the Indian Evidence Act has relied upon the judgment of V. M. Mathew V/s. V. S. Sharma and others reported in AIR 1996 SC 109 : 1995 (6) SCC 122.
7. The learned judge, having noted the facts of the case of the complainant, observed that the case was filed by the complainant regarding cheating and misappropriation committed by the accused with the execution of agreement of sale in the year 2013 and has misrepresented to the complainant, though they already knew the fact that the property was sold out in the year 2010, in spite of that Page 6 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined agreement of sale was executed and they had received total amount of Rs.11 lakhs of the money agreed upon from the complainant. 7.1. The learned Judge, after having considered the argument, has observed that Section 391 of the Cr.P.C. empowers Court to allow any party to produce additional evidence at the appellate stage, however the learned Judge was of the opinion that right itself, would not be sufficient, unless, it is shown that some change in the circumstances or new facts and evidence are derived by the parties. 7.2. The learned Judge further expressed that it was incumbent upon the applicant to show as to what was the reason that prevented him to produce particular documents at the time of the trial. The evidence was recorded under Section 138 of the N.I. Act by the complainant against accused No.3, and learned Judge also noted that the evidence was recorded under Section 138 of the N.I. Act from 01.12.2017 to 16.12.2018 in Criminal Case No.824 of 2015 and at that point of time, Criminal Case No.2403 of 2018 was not concluded and the same was in progress, which was finally decided on 30.12.2019.
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8. Learned Appellate Judge, having perused the record of the case, observed that the appellant was represented by private lawyer with the prosecution and the private advocate who appeared for the complainant had submitted written arguments before the learned trial Court on 07.08.2019 and thus the learned Appellate Court came to the conclusion that when the matter was kept for hearing, all the evidence which the complainant purported to now produce in the appellate stage was within his custody and power, but no effort was made by the appellant before the learned trial Court to produce such evidence.
8.1. Learned Appellate Court has also referred to the contention that the private assisting advocate had asked the Public Prosecutor to produce the same on record, but the Public Prosecutor had denied to produce it during the trial, while the learned Appellate Court noted that no such ground has been raised in the appeal memo and thus has disbelieved the contention, observing that had the Public Prosecutor turned down his request, then the appellant as a complainant ought to have mentioned in the appeal memo or should have filed a separate application of the like nature along with the appeal memo. Page 8 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024
NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined When no such ground has been raised in the appeal memo and only after a part hearing at the final stage, the application has been moved for the final additional evidence. The learned Appellate Judge has also noted that on 01.12.2018, the Vakalatnama of the private advocate was filed on record and on 07.08.2019, after the lapse of 9 months written arguments were submitted, thus the learned appellate Court was not ready to believe the submission that since the private advocate appeared at the stage of conclusion of the trial thus could not produce the document, and found it devoid of any substance. 8.2 After considering the entire facts and circumstances, learned Appellate Court found that the documents purported to be produced at the appellate stage was within the power and custody of complainant as an appellant and inspite of that, had not tried to produce the same before the learned Trial Court. Learned Appellate Court has further noted that nothing has been mentioned in the application as to what prevented the appellant to produce such documents at the time of trial. The reasons mentioned for non- producing of those documents before the learned trial Court seems to be not plausible. Thus, the learned Appellate Court concluded that Page 9 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined to fill up the lacuna and to falsify the observation of learned Trial Court, appellant cannot be permitted to file the additional evidence. Hence, rejected the same.
9. Learned APP Mr. Hardik Mehta for the State has submitted that the dispute between the parties is with regard to the case prosecuted by the State under Section 406, 420 and 114 of the IPC and the private complaint under Section 138 of the Negotiable Instruments Act. Learned APP submitted that both the proceedings are independent and the evidence recorded in the private proceedings cannot be made a part of the proceedings filed by the State as the Public Prosecutor is required to follow the provisions of the Criminal Procedure Code and all the evidence as well as all the witnesses would be cited in the charge-sheet and further the documents to be relied upon are to be produced in the trial, prior to examining the witnesses. Hence, there would not be any scope of producing or proving any other private document more so an affidavit, which would be a part of private complaint in a proceeding under Section 138 of the N.I. Act.
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10. Learned advocate Mr. Bhamare for the respondent Nos.2 and 3, who are accused of the matter before the learned Appellate Court raised a preliminary contention that the present revision application would not be maintainable since the order impugned is an interlocutory order. Learned advocate Mr. Bhamare submitted that even if the order is considered as a final decision on the rights of the parties, even then too, the complainant would have no authority to rely upon the documents which has been marked in a proceedings where the accused of the present matter has been a witness in a private proceeding.
10.1. Learned advocate Mr. Bhamare submitted that the evidence which has been sought to be relied upon is that of the accused who was examined by the wife as a defence witness and the complainant, who is the present appellant, had the opportunity to cross-examine the accused as a witness in the proceedings. The evidence, which the appellant, as a complainant, proposes to produce before the learned Appellate Court is the deposition in the private complaint of the appellant where the accused of the present matter was a defence witness. Hence, submitted that as per the Article 20(3) of the Page 11 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined Constitution of India, no person accused of any offence shall be compelled to be a witness against him and further submitted that the evidence was recorded in a criminal trial and thus relying upon in the case of A. T. Mydeen and Anr. V. Assistant Commissioner, Customs Department reported in AIR 2021 SC 969, submitted that the evidence recorded in the Criminal trial against any accused is confined to culpability of that accused only. It does not have any bearing upon co-accused, who has been tried on the basis of evidence recorded in separate trial.
10.2. Learned advocate Mr. Bhamare submitted that the nature of the offence alleged would be similar, but is not the same where the proceedings under Section 138 of the N.I. Act is initiated by the complainant himself, while under Sections 406, and 420 read with Section 114 of the IPC prosecution is by the State and thus submitted that the reliance, which has been placed under Section 33 of the Indian Evidence Act, would not be applicable in the present matter and further stated that Section 391 of the Cr.P.C. though empowers a person to produce additional evidence, but it is discretion of the Appellate Court that prevails which has to be Page 12 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined exercised sparingly and the Court has to observe and give reasons prior to exercising the power, as such may cause prejudice to the accused and submitted that the discretion cannot be exercised, if the Court has been called upon to consider the matter and to receive the evidence as a disguise for retrial or to change the nature of the case.
11. Having perused the order impugned, heard learned advocates for respective parties.
12. In the State of Gujarat v. Gaurang Mathurbhai Leuva, (1999) 2 GLH 564, the expression "interlocutory order" was elaborated to lay down the proposition of law in the following terms:-
"The expression "interlocutory order" is not defined in Criminal Procedure Code. In order to judge whether the particular order is interlocutory or otherwise, the court has to, making every endeavour, find out whether the order in question is interlocutory order. If it is found that the order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course of the hearing the same can be termed interlocutory order. If the order substantially affects the rights and liabilities of the parties it would not be an interlocutory order. It may also be stated that Page 13 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined intermediate or quasi-final order which determines a particular issue finally at any stage of the hearing will not fall within the ambit of interlocutory order."
13. This Court is called upon to examine the correctness, legality or propriety of the finding under Section 397 read with Section 401 of the Cr.P.C. Section 33 of the Indian Evidence Act has been relied upon by learned advocate Ms. S. M. Ahuja to state that the evidence which has been recorded in the subsequent proceedings would be relevant evidence in a proceeding between the same parties, which is a criminal trial or an inquiry. The reliance on Judgment of V.M. Mathew v/s. V. S. Sharma and others (supra) is in context of the facts of the case, where Will was executed and the properties were bequeathed to the respondents where the challenge was given by one of the brothers against the sister and her son and on demise of Annamma, respondent Nos. 1 and 2 had filed the petition under Section 276 of the Indian Succession Act, 1925 for grant of letters of administration in respect of the estate of deceased Annamma and annexed the copy of the Will thereto. The appellant had objected to the grant of letters of administration disputing the validity and genuineness of the Will and also for failure to implead necessary and Page 14 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined proper parties therein. Learned trial Court dismissed the application on merits holding that the Will was not genuine and also on the ground of non-joinder of the necessary parties, in appeal, the High Court vacated the findings of the District Judge on the first point and upheld that the petition was not maintainable for non-joinder of necessary parties. Consequently, it dismissed the appeal. Respondents thereafter filed another application for grant of letters of administration which, on caveat being entered, was converted into a suit. The appellant sought to rely on the deposition of 'Kurian' examined in the previous proceeding and sought to bring on record relying under Section 33 of the Indian Evidence Act, the reception of which was objected by the respondents.
14. In that proceeding, by allowing the appeal, it was concluded as under:-
"We, therefore, hold that the appellant is an adverse party in the first proceeding and he had the right and opportunity to cross-examine Kurian who was examined as P.W.1 in the previous proceeding by the respondents; and the evidence becomes admissible since Kurian died pending proceeding. Its acceptability is a matter to be considered by the trial court but at this stage it is not proper for us to go into that aspect of the matter".
"The appeal is accordingly allowed. The judgment of the High Court is reversed and the order of the trial Judge is Page 15 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined set aside. The trial Judge is directed to mark the evidence of Kurian examined in the previous proceeding as P.W.1 on behalf of the appellant and proceed with the matter in accordance with law. No cost."
15. Section 33 of the Evidence Act is reproduced herein to appreciate the provision in context of the facts of the present matter.
"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable :
Provided -
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation. - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Statements Made Under Special Circumstances."
16. Section 33 provides that the evidence given by witness in a earlier judicial proceeding or before any person authorized by law to take evidence, is relevant in a subsequent judicial proceeding, or at a Page 16 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined later stage of the same judicial proceeding for the purpose of proving, the truth of the facts contained therein, if the conditions mentioned in Section 33 are satisfied.
17. The relevancy of the evidence of the witness is to be considered, if that evidence proposed to be produced in a subsequent judicial proceeding or at a later stage of the same judicial proceeding, satisfies the condition that the evidence of the witness, proposed to be produced is no more i.e. dead, or cannot be found or is in incapable of giving evidence or that witness is kept out by way of adverse parties or his presence cannot be obtained without any amount of delay or expense which under the circumstances of the case, the Court considers unreasonable.
18. In the present matter, the evidence, which has been proposed to be filed is the evidence of the accused of the trial, who had been examined as a defence witness in a proceeding by the private complainant against the wife of the witness. While in the proceedings before the learned Appellate Court that said witness and his wife both are the acquits, who had faced the criminal trial under Page 17 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined Section 406, 420 and 114 of the in Criminal Case No.2403 of 2018. Here the evidence which has been sought to be produced is the deposition of the accused, who is facing the appeal having received an acquittal in the trial proceedings. The relevancy of the evidence of proving in subsequent proceedings, is subject to the proviso of Section 33 of the Indian Evidence Act where the proceedings were between the same parties or their representatives in interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; and that the question in issue was substantially the same in the first as in the second proceeding.
19. According to learned advocate Mr. S. M. Ahuja both the proceedings had the same issue in question and further submitted that the proceeding under Section 138 of the N.I. Act was against the wife of the witness, whose evidence recorded, is sought to be produced under Section 391 of the Cr.P.C. at the appellate stage. The issue was with regard to the agreement of sale.
20. Countering the same, learned advocate Mr. Bhamare submitted that the proceeding under Section 138 of the N.I. Act is Page 18 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined regarding the dishonour of the cheque, while Sections 406 and 420 are invoked for cheating and criminal breach of trust.
21. In V. M. Mathew v/s. V. S. Sharma and other reported in 1995 SCC (6) 122, the Court has referred to the proviso of Section 33 of Evidence Act to the main section, where the Court has explained the concept in following terms :-
"The section lays down as to when the evidence of a witness in a previous judicial proceeding is relevant. It consists of two parts, the main section, and the proviso. The main section lays down the conditions which are required to be satisfied for the previous statement of a witness in a judicial proceeding to be admitted in evidence in the later proceeding. Admittedly, since Kurian died pending the proceeding, the requirement of the main part of Section 33 stands satisfied. The only question is what would be the effect of the words "adverse party in the first proceeding having the right and opportunity to cross-examine". The question of a party having the right and opportunity to cross-examine will arise, if he is an adverse party in the first proceeding. The second proviso, which is an exception to the main part of the section, operates only if the adverse Page 19 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined party in the first proceeding did not have the right and opportunity to cross-examine the witness examined therein.
The term `adverse party' connotes that a party which has a right and opportunity to cross examine in the first proceeding. This proviso, therefore, obviously protects the rights of the adverse party in the first proceeding and not the party who produced the witness. The party against whom the witness is produced in the previous proceeding is the adverse party and not the person who produced the witness and had the advantage of having examined the witness. If the interpretation which is sought to be put up by the learned counsel for the respondents is accepted, as has been done by the High Court, it would mean that the person producing the witness in the first proceeding will have the advantage of using the evidence of that witness in a subsequent proceeding between the same parties, while the adverse party in the first proceeding will be deprived of using the same evidence if it is favourable to him. That does not appear to be the intention of the proviso.
The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and Page 20 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined opportunity to cross-examine the witness in the previous proceeding. Take an instance where ex-parte proceedings were taken against the defendant, he had no right and opportunity to cross-examine the witness. If the same evidence is sought to be used, he is certainly an adverse party in the previous proceeding and since he had no right and opportunity to cross-examine that witness, the same evidence cannot be used against the defendant in the subsequent proceeding. In other words, the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross-examination in order to make it admissible in the later proceeding. Thereby it seeks to protect the rights against whom the previous proceeding might have gone ex-
parte who had no right and opportunity to cross-examine the witness. For the same reason, it would also protect the co-plaintiffs and co-defendants who may have a right but no opportunity to cross-examine the witness since it was produced by one of the co-plaintiffs or co- defendants on their side but that evidence went against their interest. It is, therefore, clear that a person who examined the witness should not be permitted, in the subsequent proceeding Page 21 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined between the same parties, to raise the objection that the statement which was recorded in the previous proceeding on his behalf should not be admissible because he had no right and opportunity to cross-examine him. It would also be unfair that the person producing a witness in the previous proceeding should be able to utilise the evidence recorded in his favour in the previous proceeding as evidence in the subsequent proceeding, while the adverse party should be denied of the same right of using the same statements favourable to him which went against the party producing the witness in the previous proceeding."
22. Section 33 with the proviso explains that the criminal trial or inquiry shall be deemed to be proceedings between the prosecutor and accused within the meaning of this section. Here, the proceeding between the parties, which is before the Appellate Court, is with regard to the proceeding between the State and the accused of criminal trial. While the evidence, which is proposed to be produced was one which was recorded as an affidavit of the defence witness in a private complaint of payee of the cheque against the drawer of the cheque. The appeal is by the complainant of both the matters. If the Page 22 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined ratio laid down in the referred judgment of V. M. Mathew v/s. V. S. Sharma (supra) is accepted, than the accused cannot deny the complainant to rely on the evidence, in examination-in-chief testified through the cross-examination. Section 33 deals with relevancy, and not with mode of proof. If evidence is irrelevant, even consent of parties cannot make it relevant. Evidence can be relevant only when the conditions of Section 33 are fulfilled. In other words, Court can hold evidence given in prior judicial proceeding, or before any person authorised by law to take it, relevant only, if it is satisfied that the requisite conditions mentioned in this section are fulfilled.
23. Section does not enjoin upon the Court that the statement of such a witness must be believed. This section as already stated deals with relevancy.
24. It is not possible to lay down any hard and fast rule for the application of Section 33. Each Case must depend upon its own facts and the matter is essentially one for the exercise of discretion on the part of the judge. The Court has no discretion as to admitting a deposition when the witness (i) is dead (ii) cannot be found (iii) is Page 23 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined incapable of giving evidence (iv) is kept out of the way; the deposition of such witnesses is declared to be relevant and must therefore be admitted.
25. The Court has such a discretion in the case of the circumstances mentioned at the close of the section, and the High Court will not interfere with the discretion by the judge unless, it was exercised arbitrarily or against the well-established principles of law.
26. In criminal cases, particularly where man is being tried for a serious crime, and the evidence sought to be accepted signals vital importance, the Court must insist on strict proof before holding that the conditions required for admitting former deposition have been satisfied.
27. It is an elementary right of an accused person that a witness who is to testify against him should give his evidence before the Court trying the case, which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability, than is possible, from reading a Page 24 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined statement or deposition.
28. In criminal cases, where the onus is entirely on the prosecution the matter should not be left on the objection or no objection on behalf of the accused and when such evidence is sought to be let through the indirect route envisaged by Section 33 of Evidence Act, the Court must be satisfied that proper foundations have been laid down for such a course.
29. The proceeding in which the affidavit in the form of examination-in-chief and cross-examination is sought to be produced is a matter conducted by the State, was recorded in the proceeding under Section 138 of N. I. Act. In both the proceeding, two different offences get disclosed, though it may be under same set of facts. One will be dealt by the State as prosecution, while under Section 138 of N.I. Act the holder of cheque as complainant would be in the prosecution.
30. In the case of R P Mathur Prop Radhika Leather Fashions v/s. S R P Industries LTD. reported in 2009 Law Suit Delhi 2266, the issue with regard to the double jeopardy relying on the Article Page 25 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined 20(2) of the Constitution of India was dealt with, when it was submitted of the complaint filed under Section 138 of the Negotiable Instruments Act and the charges under Sections 420, 477A read with Section 120B of the IPC. Thus, noted in the facts of the case, the Hon'ble High Court of Delhi held that:-
"In the facts of the case two sets of offence have been disclosed categorically and clearly, that is offence of cheating in relation to the complaint subject matter of the CBI investigation and commission of offence under Section 138 of N.I. Act on account of non-payment of the cheque amount within the time prescribed for which the notice was issued to the petitioner by the complainant in accordance with the scheme of the provisions under Section 138 of the N.I. Act. It is not a case of double jeopardy inasmuch as separate punishments are provided for the two set of offences, that is for dishonouring of the cheque under Section 138 of the N.I. Act which cannot exonerate the petitioner for having committed other offences under Section 420/477A/120B IPC to have cheated the complainant on the basis of false assurance given by him supported by the bankers etc."
31. The prayer was made under Section 391 of the Cr.P.C. to take further evidence by invoking the power, which has been entrusted to the learned Appellate Court under the Cr.P.C. In Brig Sukhjeet Singh (RETD) MVC (supra), the Supreme Court has placed Page 26 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined emphasis on the key words "if it thinks additional evidence to be necessary." The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. Here the appeal has been filed under Section 372 of the Cr.P.C by the complainant against the acquittal judgment of the learned trial Court. The power to take the additional evidence under Section 391 of the Cr.P.C. is entrusted for to appropriately decide the appeal by the learned Appellate Court to secure ends of justice. In the case of Rajeswar Prasad Misra Vs. State of West Bengal and Another reported in 1965 AIR (SC) 1887, which is being relied in Brig Sukhjeet Singh (RETD) MVC (supra) para 8 and 9 have been reproduced to consider the ratio that the additional evidence must be necessary, not because, it would be impossible to pronounce judgment but because there would be failure of justice without it. Para 8 and 9 are reproduced here under:-
"8. .....................................Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume Page 27 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made 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......................"
32. Wide discretion is entrusted to the learned Appellate Court to deal with an appeal under Chapter 29 of the Cr.P.C., if learned Appellate Court thinks that additional evidence would be necessary, then shall record its reason for taking such additional evidence on Page 28 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined record. It may either take the evidence itself or may direct the concerned Magistrate to record the same. If the Court directs the Magistrate to record the same, then the Magistrate shall certify such evidence to the Appellate Court and Appellate Court shall thereupon proceed to dispose of the appeal. Here in the present case the question is about the documents, which the appellant as the complainant wants to prove as an admission by the accused in his own deposition in a proceeding under Section 138 of the N.I. Act. It has been urged that though those documents were available during the trial proceedings under Sections 406, 420 and 114 of the Indian Penal Code, it was not produced. Learned advocate for the appellant had urged before the learned Appellate Court that they had tried to convince the Public Prosecutor to produce the agreement of sale before the trial Court, but the learned Public Prosecutor had declined the same. The said contention had not been believed by the learned Appellate Court with the observation that such contention has not been made the ground of appeal nor any separate application has been given to that effect.
33. Needless to note here that the Section 391 of the Cr.P.C. is Page 29 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined akin to Order 41 Rule 27 of the Code of Civil Procedure, Order 41 Rule 27 deals as under :-
"27. Production of additional evidence in Appellate Court.--
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 1 [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission".
34. The power under Section 391 of the Cr.P.C. has to be exercised sparingly and only in suitable cases. In Rajeswar Prasad Misra Vs. State of West Bengal and Another (supra), it has been noted that such evidence should not be received, if it causes Page 30 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined prejudice to the accused, explaining with an example, that it should not be received as a disguise for a retrial or to change the nature of the case against the accused. The order must not ordinarily be made, if the prosecution had a fair opportunity and has not availed of it.
35. The Court, in Brig Sukhjeet Singh (RETD) MVC (supra), has also referred to the judgment of Rambhau and Another Vs. State of Maharashtra, (2001) 4 SCC 759 to note the power under Section 391 of the Cr.P.C. of the Appellate Court. The observations para 1 and 2 are as under:-
"1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same..........
2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of W.B. in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record Page 31 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard."
36. It has been observed that there are no fetters on the power under Section 391 of the Cr.P.C. of the Appellate Court and such powers are conferred on the Court to secure ends of justice, where the ultimately object of judicial administration is to secure ends of justice. However, on the observation, it has been considered that such exercise of power should be with the caution that it should neither cause any prejudice to the accused nor such a power could be exercised as in the form of retrial or to change the nature of the case against the accused. The complainant had opportunity before the trial Court, failed to avail it, and further the additional evidence which was sought to be produced was well within the knowledge of complainant during trial at the Court of first instant. Even if the Appellate Court may need such documents for just decision of case to secure ends of justice, any document which prejudices the right of accused who had been acquitted by trial Court should not be accepted nor the power can be exercised to change the nature of case Page 32 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024 NEUTRAL CITATION R/CR.RA/455/2022 JUDGMENT DATED: 13/08/2024 undefined or which may lead to retrial.
37. In this case, the evidence, is one of the accused, who is facing the appeal from the acquittal recorded by the learned trial Court. The accused is protected by the Constitution of India, he cannot be compelled to be a witness against himself. Where an accused person is put on oath for the purposes of assisting the defence of another accused, the evidence of such accused person could under no circumstances be tenderable against him. The evidence of the accused of the another trial-proceeding if used in appeal will certainly prejudice the accused, more so when he is acquitted in the trial Court. Thus this Court is of an opinion that the order challenged is proper, in accordance to law and does not have scope of interference.
38. Hence, present Revision Application does not succeed merits, and is disposed of as rejected. Rule is discharged. Interim relief, if any, stands vacated.
(GITA GOPI,J) Vikramsinh Amarsinh Page 33 of 33 Uploaded by Vikramsinh Amarsinh(HCW0055) on Fri Aug 30 2024 Downloaded on : Fri Aug 30 21:50:48 IST 2024