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2016 DIGILAW 310 (RAJ)

Kailash Agarwal v. State of Rajasthan

2016-02-23

BANWARI LAL SHARMA

body2016
JUDGMENT : Banwari Lal Sharma, J. In pursuance of the order dated 18.2.2016, amended cause title has already been filed, which is taken on record. The registry is directed to place it on appropriate place. 2. The petitioner accused appellant preferred this criminal miscellaneous petition against the impugned order dated 18.11.2015 passed by the learned Additional District & Sessions Judge, Camp Court at Dudu, District Jaipur in Criminal Appeal No.8/2015, whereby the learned appellate court dismissed the application of the appellant accused submitted u/s 391 Cr.P.C. 3. Brief facts of the case are that the respondent complainant Manoj Kumar Jain submitted a criminal compliant for the offence u/s 138 of N.I. Act against the petitioner accused appellant before the learned Judicial Magistrate, Dudu, District Jaipur wherein after trial, the petitioner accused appellant was convicted for the aforesaid offence. Feeling aggrieved by the judgment of conviction and order of sentence passed by the learned trial court, he preferred an appeal before the learned Additional District & Sessions Judge, Camp Court Dudu, District Jaipur. During the pendency of the appeal, he submitted an application u/s 391 Cr.P.C., which was dismissed vide impugned order dated 18.11.2015 (Annexure-4). Hence, this criminal miscellaneous petition. 4. Learned counsel for the petitioner accused appellant Ms Suman Shekhawat submits that three cheques were sent to the Forensic Science Laboratory, where the handwriting was examined by the handwriting expert. It was found that four columns of cheques were filled in by respondent complainant Manoj Kumar Jain in the name of his brother Anand Kumar. She submits that the cheques, in question, were given to the complainant for depositing the Life Insurance Premium. The said cheques were blank and signatures were put by the petitioner only, which were misused by the complainant and on the basis of said cheques, he filed criminal complaint on wrong facts. Therefore, during the trial also, the petitioner appellant accused moved an application for comparison of handwriting which was wrongly rejected by the trial court. Thereafter, a co-ordinate Bench of this court directed to ascertain the handwriting on cheques from FSL. She submits that since the handwriting has been ascertained, therefore, the petitioner appellant accused may be permitted to examine the handwriting expert and to submit the documents regarding premium of life insurance policy. Thereafter, a co-ordinate Bench of this court directed to ascertain the handwriting on cheques from FSL. She submits that since the handwriting has been ascertained, therefore, the petitioner appellant accused may be permitted to examine the handwriting expert and to submit the documents regarding premium of life insurance policy. She submits that as per section 139 of NI Act, there is a presumption against the petitioner appellant accused but to rebut the said presumption, it is necessary to examine the handwriting expert and submit documents for defence of the petitioner appellant accused. Therefore, this criminal miscellaneous petition may be allowed and after quashing the impugned order dated 18.11.2015, the application of the petitioner appellant accused may be allowed. 5. Per contra, the learned counsel for respondent No. 2 complainant Shri Kamlesh Pareek submits that during trial, proper opportunity had already been given by the trial court but the petitioner appellant accused himself did not avail it, rather during examination u/s 313 Cr.P.C. he himself submitted that he do not want to adduce any evidence. Therefore, no further opportunity can be given. He submits that scope of section 391 Cr.P.C. is very limited and this provision can be invoked in special circumstances. 6. I have considered the submissions made at Bar. 7. Therefore, no further opportunity can be given. He submits that scope of section 391 Cr.P.C. is very limited and this provision can be invoked in special circumstances. 6. I have considered the submissions made at Bar. 7. From perusal of the impugned order, it reveals that the learned trial court observed as under : "i =koyh ds voyksdu ls ;g Li"V gksrk gS fd ekuuh; mPp U;k;ky; }kjk fnukad 07-07-2014 dks vkns'k ikfjr fd;k x;k Fkk ,oa mDr vkns'k esa ;g vknsf'kr fd;k x;k Fkk fd gLrys[k fo'ks"kK dks xokg ds :i esa Lo;a ds [kpsZa ij cqykus gsrq cpko ds izdze ij izkFkZuk i= is'k dj ldrk gS ,oa ,slk izkFkZuk i= izLrqr gksus ij fopkj.k U;k;ky; fof/k vuqlkj U;k; ds fl)kUrksa ds vuq:i vkns'k ikfjr djsxk fdUrq i=koyh ds voyksdu ls ;g Li"V gksrk gS fd ekuuh; mPp U;k;ky; ds mDr vkns'k dh vuqikyuk esa cpko ds izdze ij izkFkhZ&vihykFkhZ }kjk dksbZ izkFkZuk i= gLrys[k fo'ks"kK dks lk{; esa cqykus gsrq fo}ku v/khuLFk U;k;ky; ds le{k is'k ugha fd;k x;k gSA ekuuh; mPp U;k;ky; dk mijksDr vkns'k fnukad 07-07-2014 dks gks pqdk Fkk ,oa mlds i'pkr~ izdj.k esa fnukad 10-07-2014 dks c;ku eqyfte fo}ku v/khuLFk U;k;ky; }kjk /kkjk 313 lhvkj0ih0lh0 ds rgr ys[kc) fd;s ftlesa Lo;a izkFkhZ&vihykFkhZ us 'kgknr lQkbZ is'k djus ls badkj fd;k gSA bl izdkj ;g Li"V gS fd fo}ku v/khuLFk U;k;ky; ds le{k ekuuh; mPp U;k;ky; dk vkns'k ikfjr gksus ds i'pkr~ Lo;a izkFkhZ&vihykFkh us 'kgknr lQkbZ is'k djus ls badkj fd;k gS ,oa cpko ds izdze ij dksbZ Hkh izkFkZuk i= gLrys[k fo'ks"kK dks lk{; esa cqykus gsrq is'k ugha fd;k x;k gS u gh 'kgknr lQkbZ is'k djus dk eqyfte us dksbZ dFku fo}ku v/khuLFk U;k;ky; ds le{k cpko ds izdze ij fd;k gSA izkFkhZ&vihykFkhZ }kjk /kkjk 243@2 lhvkj0ih0lh0 dk izkFkZuk i= fo}ku v/khuLFk U;k;ky; ds le{k fnukad 18-03-2015 dks is'k fd;k gS tcfd i=koyh fnukad 18-03-2015 dks fu.kZ; ds izdze ij yafcr Fkh vkSj cgl vafre lquh tk pqdh FkhA blls iwoZ izdj.k esa cgl vafre gsrq vusd rkjh[k isf'k;ka fo}ku v/khuLFk U;k;ky; }kjk fu;r dh x;h FkhA oSls Hkh vfHk;qDr }kjk pSdksa ds iznku o ml ij vius gLrk{kjksa ls badkj ugha fd;k x;k gSA U;kf;d n`"VkUr 2014@2 flfoy dksVZ dslst i`"B 409 jktLFkku ekSgEen jbZl cuke jktLFkku jkT; esa ;g izfrikfnr fd;k x;k gS fd pSd ds fu"iknu ls badkj ugha fd;k x;k pSd dks fdlds }kjk Hkjk x;k ;g egRoiw.kZ ugha gSA ekuuh; mPp U;k;ky; ds vkns'k esa cpko ds Lrj ij izkFkhZ & vfHk;qDr dks Lo;a ds [kpsZa ij gLrys[k fo'ks"kK dks lk{; esa is'k djus gsrq izkFkZuk i= is'k djus dk funsZ'k fn;k Fkk ,oa ml ij v/khuLFk U;k;ky; dks fof/k vuqlkj vkns'k ikfjr djus dk vkns'k fn;k Fkk fdUrq cpko ds Lrj ij Lo;a izkFkhZ & vfHk;qDr }kjk ,slk dksbZ izkFkZuk i= fo}ku v/khuLFk U;k;ky; ds le{k is'k ugha fd;k x;k ,oa c;ku eqyfte /kkjk 313 lhvkj0ih0lh0 esa Hkh izkFkhZ&eqyfte us lk{; lQkbZ is'k djus ls badkj fd;k gS tcfd mlds c;ku eqyfte /kkjk 313 lhvkj0ih0lh0 ekuuh; mPp U;k;ky; ds mijksDr vkns'k ds i'pkr~ ys[kc) fd;s x;s gSa ,oa izkFkhZ&vihykFkhZ }kjk fo}ku v/khuLFk U;k;ky; }kjk cgl vafre lqus tkus ds i'pkr~ tcfd i=koyh fu.kZ; ds izdze ij yafcr Fkh] fnukad 18-03-2015 dks izkFkZuk i= /kkjk 243@2 lhvkj0ih0lh0 is'k fd;k gSA izkFkhZ&vihykFkhZ }kjk fookfnr pSd ij gLrk{kj ls badkj ugha fd;k x;k gSA" Section 391 Cr.P.C. reads as under : "391. Appellate Court may take further evidence or direct it to be taken. - (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry." 8. From a bare perusal of the above provisions, it is clear that the additional evidence at appellate stage can be taken only when the Appellate Court thinks it necessary after assigning reasons. From the above observation of the Appellate Court, it is clear that opportunity for defence evidence was given to the petitioner appellant accused by the trial court during trial and the co-ordinate Bench of this court also, directed that the petitioner can examine handwriting expert on its own expenditure at the time of defence evidence but he failed to examine the handwriting expert at his own and pleaded that he is not interested to lead defence evidence at the time of examination u/s 313 Cr.P.C. 9. Therefore, there is no reason to allow the application of the petitioner appellant accused at appellate stage. Learned Appellate Court also dismissed the application after considering all the arguments of the appellant accused which does not require any interference. 10. Therefore, the criminal miscellaneous petition as well as stay application being devoid of merit are hereby dismissed. Petition and stay application dismissed.