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2021 DIGILAW 691 (GUJ)

AJAYBHAI JAMIYATBHAI JOSHI v. STATE OF GUJARAT

2021-08-17

B.N.KARIA

body2021
ORDER : 1. By preferring this petition under Article 14, 16, 226 and 227 of the Constitution of India and under the provision of Section 482 of the Criminal Procedure Code, 1973, applicant has challenged the order passed below Ex-43 in Criminal Appeal No.22/2011 by the learned Sessions Judge, Gandhinagar rejecting the application Ex-43 filed by the applicant under Section 391 of Code of Criminal Procedure for producing additional evidence by an order dated 28.01.2016. The applicant was convicted by the learned Chief Judicial Magistrate, Gandhinagar in Criminal Case No. 9853 of 2009 vide judgment and order dated 04.05.2011 for the offence punishable under Section 406, 420, 408, 467, 468, 471 read with Section 114 of the IPC while he was acquitted u/s. 120(B) of the IPC. 2. Heard learned advocate Mr. Yogendra Thakore for the applicant, learned advocate Mr. Nanavati for the respondent No.2 and learned APP Mr. Himanshu Patel for the respondent - State. 3. It is submitted by learned advocate appearing for the petitioner that against the order of conviction passed by the learned Chief Judicial Magistrate, Gandhinagar dated 04.05.2011 in Criminal Case No.9853 of 2009, Criminal Appeal No.22/2011 was preferred by the present applicant challenging the impugned judgment and order of conviction. It was further submitted that when the appeal came up for hearing, it was found that the important documents i.e. forged cheques which were deposited in the accounts of the applicant and almost entire amount was withdrawn by the accused namely Jayeshbhai Shah on the very next day That after realisation of the amount which clarifies the innocence of the applicant, and therefore, an application under Section 391 of the Code of Criminal Procedure for permitting him for production of additional evidence of the cheque details before the Sessions Court, Gandhinagar. It is further submitted that the amount deposited was withdrawn by the co-accused namely Jayeshbhai Shah. 4. It is further submitted that Sessions Court has wrongly dismissed the application Ex-43 without assigning any reasons which would frustrate the provisions of Section 391 of the Code. It is further submitted that great prejudice would be caused to the applicant because of non-production of the said evidence as he could not defend himself properly before the trial Court. It is further submitted that rejecting the application Ex-43, was not just and proper, and therefore, impugned order is liable to be quashed and set aside. It is further submitted that great prejudice would be caused to the applicant because of non-production of the said evidence as he could not defend himself properly before the trial Court. It is further submitted that rejecting the application Ex-43, was not just and proper, and therefore, impugned order is liable to be quashed and set aside. It is further submitted that under Section 391 of the Criminal Procedure Code, the applicant is required to be permitted to produce additional evidence as the applicant was wrongly convicted by the Court. Hence, it was requested by the learned advocate appearing for the applicant to quash and set aside the impugned order passed below Ex-43 dated 28.01.2016 by the learned Sessions Judge, Gandhinagar in Criminal Appeal No.22/2011. 5. While opposing the prayer made by the applicant, learned advocate appearing for the respondent No.2 has submitted that the applicant failed to rebut the evidence of prosecution witnesses by leading any further evidence. It is further submitted that no defence was taken by the present applicant during the course of the trial as argued before this Court. It is further submitted that not giving any proper advice by the advocate engaged by the present applicant, facts cannot be denied and such a permission cannot be granted by exercising powers under Section 391 of the Code of Criminal Procedure. That learned Sessions Judge has rightly dismissed the prayer made by the present applicant. That applicant has tried to fill up the lacuna before the Appellate Court however sufficient opportunity was afforded during the course of the trial. In support of his arguments, learned advocate for the respondent No.2 has relied upon the judgment reported in 1993 AIR SCW 1178. The learned advocate appearing for the applicant in support of his arguments has relied upon the judgment of this Court reported in 2015 (0) AIJ-GJ 233164 and 2020 (0) AIJEL-HC 241865. 6. Learned APP appearing for the respondent No.1 has also supported the submission made by respondent No.2. Referring charge-sheet papers, it is submitted that applicant was involved in an offence under Section 406, 420, 408, 467, 468, 471, 120(B), 114 of the IPC. It is further submitted that after recording the evidence before the trial Court, he was convicted for the offence except under Section 120(B) of the IPC. Referring charge-sheet papers, it is submitted that applicant was involved in an offence under Section 406, 420, 408, 467, 468, 471, 120(B), 114 of the IPC. It is further submitted that after recording the evidence before the trial Court, he was convicted for the offence except under Section 120(B) of the IPC. That at no occasion during the course of trial, such a defence was raised by the applicant himself in the evidence led by the prosecution. Referring the application Ex-43 in Criminal Appeal No.22 of 2011 preferred by the present applicant, it is further submitted that at the time of recording further statement under Section 313 of the Code, no question was raised by the present applicant of producing any additional evidence or not producing the cheques in dispute. It is further submitted that no application under Section 173 (8) of Cr.P.C was submitted by the present applicant for collecting additional evidence for investigation. That for the first time, before the Appellate Court this application was submitted by the present applicant. That applicant has tried to fill up the lacuna of the evidence which was not defended or availed by him, and therefore, this court may not exercise the powers under Section 391 of the Criminal Procedure Code. Hence, learned APP has requested to dismiss the petition. 7. Having gone through the facts of the case, the submission made by the learned advocates for the respective parties as well as learned APP, it appears that vide judgment and order passed by the learned Chief Judicial Magistrate, Gandhinagar in Criminal Case No.9853/2009, dated 04.05.2011, the applicant was convicted for the offence punishable under Section 406, 420, 408, 467, 468, 471 read with Section 114 of the IPC while he was acquitted under Section 120 (B) of the IPC along with accused No.2 namely Jatinbhai Ishwarbhai Bhavshar. The applicant preferred Criminal Appeal No.22/2011 before the Sessions Court at Gandhinagar wherein vide Ex-43, an application under Section 391 of the Code of Criminal Procedure was submitted by the present applicant. In paragraph no. 3 of the application, it was submitted that as per the prosecution case, the disputed cheques were handed over to the accused and the applicant. Entire amount of the cheque was withdrawn by the employee of the competence company. That when any person is withdrawing the amount, his signature would be taken on the back side of the cheque. 3 of the application, it was submitted that as per the prosecution case, the disputed cheques were handed over to the accused and the applicant. Entire amount of the cheque was withdrawn by the employee of the competence company. That when any person is withdrawing the amount, his signature would be taken on the back side of the cheque. That it was the duty of the investigating officer to put on record this fact but however, Investigating Officer has not collected the cheque during the course of the investigation nor they were put on record. It was necessary to put on record the same facts before the Court at the time of recording further statement of the accused but he could not produce on record as he was not advised by his advocate and therefore, he could not produce the same. If such an evidence would be placed on record, he would be able to establish his innocence and therefore request was made to produce the aforesaid cheque before the Court. The learned Sessions Judge was pleased to dismiss the application Ex-43 by order dated 28.01.2016. The powers under Section 391 of the Criminal Procedure Code can be exercised by the Appellate Court for producing things which were necessary for production of the Additional evidence by applicant by passing reasoned order. Here, as per the record produced for perusal of the Court by learned advocate appearing for the applicant, number of witnesses were examined from the prosecution side before the trial Court. Not a single question was asked in cross-examination of any of the witnesses in respect of the cheque, nor it was produced by the prosecution. It is admitted in the application Ex-43 itself that at the time of recording further statement under Section 313 of the Code of Criminal Procedure, such a defence was not taken by the present applicant before the trial Court. In an appeal preferred by the present applicant, for the first time this issue was raised by the applicant. There is nothing on record that any request was made by the applicant about not collecting the cheque in dispute by the investigating officer during the course of investigation. Hon'ble Division Bench of this Court, in 2020 (0) AIJEL-HC 241865 has observed in a similar issue of production of additional evidence at an appellate stage. There is nothing on record that any request was made by the applicant about not collecting the cheque in dispute by the investigating officer during the course of investigation. Hon'ble Division Bench of this Court, in 2020 (0) AIJEL-HC 241865 has observed in a similar issue of production of additional evidence at an appellate stage. It was observed that failure of justice is a prime consideration for the Appellate Court in exercising its discretion for the purpose of invoking Section 391 of the Code. Power under Section 391 is to be exercised sparingly and in suitable cases. Prosecution should not fail only on account of carelessness or negligence on part of the prosecutor. In the cited case, there were two ways of looking at the situation. As per the facts of the case, an observation made therein either witnesses were deliberately dropped with a view to favour accused or it was false attitude or serious lapse on the part of the prosecution in not preserving important witnesses. Under this circumstances, the Division Bench of this High Court, suo moto, exercised the powers under Section 391 of the Criminal Procedure Code at the appellate stage to record the evidence of these two witnesses. In the cited case, important witnesses were dropped by the prosecution. 8. Here, in the instant case, however such an opportunity was available with the applicant/accused in the criminal trial to rebut the evidence of the prosecution witnesses but no dispute was raised. In the statement recorded under Section 313 of the Code, no defence was raised by the applicant. At the appellate stage, the applicant cannot raise his defence saying that he was not advised so. In 1993, AIR SCW 1178 in paragraph No.8, Hon’ble Apex Court has observed as under: “The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they chose to non-cooperate with the court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.” 9. In AG v. Shiv Kumar Yadav and Anr. ( AIR 2015 SC 3501 ) in paragraph No.28, Supreme Court has observed as under: “The power of judicial superintendence under Article 227 of the Constitution and under Section 482 Cr.P.C. has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.” (Para 28) “28. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order.” (Para 28) “28. It may also be relevant to mention that Article 22(1) of the Constitution of India confers a Fundamental Right upon an accused, who has been arrested by the police to be defended by a legal practitioner of his choice. This Fundamental Right has been duly acknowledged by the Hon’ble Superior Courts in numerous pronouncements including the case of State of Madhya Pradesh vs. Shobha Ram and others, AIR 1966 SC 1910 wherein it has been observed as under: “Under Art.22, a person who is arrested for whatever reason, gets three independent rights. The first is the right to be told the reasons for the arrest as soon as an arrest is made, the second is the right to be produced before a Magistrate within 24 hours and the third is right to be defended by advocate of his choice. When the Constitution lays down in absolute terms a right to be defended by one’ own counsel, it cannot be taken away by ordinary law, and, it is not sufficient to say that the accused was so deprived, of the right, did not stand in danger of losing his personal liberty.” 10. In Jayanti Parshottam Machhi @ Jayanti Parshottam Tandel v. State of Gujarat (2015 (0) AIJ-GJ 233164), it is viewed that if the evidence sought to be produced bear relevance to the issues, facts or aspects in the case and is likely to throw light on the controversy, then, allowing such evidence at appellate stage should be guided by pragmatic consideration and the approach purposing to finding out truth. The Appellate Court was directed for examination of two witnesses prayed by the applicant. Looking to the age of the case it was further directed to complete the exercise within two months from the date of the receipt of the order. Facts of this case would not be relevant for consideration of the prayer made in application Ex-391 of the Code of Criminal Procedure. The Court concerned must satisfy it to permit such kind of prayer if it is necessary to find out the truth. Facts of this case would not be relevant for consideration of the prayer made in application Ex-391 of the Code of Criminal Procedure. The Court concerned must satisfy it to permit such kind of prayer if it is necessary to find out the truth. Here in the case on hand, sufficient opportunity was available to the present applicant to rebut the applicants case however number of witnesses were examined. In a statement recorded under Section 313 of the Code, no defence was raised by the present applicant before the Court below. Under the circumstances, prayer made by the applicant cannot be allowed to quash the impugned order passed by the Sessions Judge, Gandhinagar dated 28.01.2016 below Ex-43 in Criminal Appeal No.22 of 2011. Hence, the petition is hereby dismissed. Notice is discharged.