Nikhilbhai Dayaljibhai Pujara vs State Of Gujarat

Gujarat High Court

Nikhilbhai Dayaljibhai Pujara vs State Of Gujarat on 20 January, 2025

                                                                                                                    NEUTRAL CITATION




                            R/SCR.A/12222/2024                                         ORDER DATED: 20/01/2025

                                                                                                                     undefined




                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12222 of 2024
                                                      With
                              CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2024
                              In R/SPECIAL CRIMINAL APPLICATION NO. 12222 of 2024
                                                      With
                                R/SPECIAL CRIMINAL APPLICATION NO. 12225 of 2024
                                                      With
                         CRIMINAL MISC.APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
                              In R/SPECIAL CRIMINAL APPLICATION NO. 12225 of 2024
                                         NIKHILBHAI DAYALJIBHAI PUJARA
                                                     Versus
                                            STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR SHAILESHKUMAR N PANSURIYA(10793) for the Applicant(s) No. 1
                       MR UMANG R VYAS(5595) for the Applicant(s) No. 1
                       MR ASHISH M DAGLI(2203) for the Respondent(s) No. 2
                       MR. TIRTHRAJ JADEJA, APP for the Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                          Date : 20/01/2025
                                                        COMMON ORAL ORDER

1. The present petition i.e. Special Criminal Application No.12222 of 2024 is filed for seeking the following reliefs:

"(A) This Hononurable Court may be pleased to admit and allow the present petition;

(B) This Honourable Court may be pleased to issue appropriate writ, order or direction quashing and setting aside the order dated 06.06.2024 passed below Exh. 40 in Criminal Appeal No.12 of 2018 and further be pleased to allow the application Exh. 40 as prayed for;

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined (C) Pending hearing and final disposal of this petition this Honourable Court may be pleased to stay the impugned order dated 06.06.2024 and further be pleased to stay the further proceedings of Criminal Appeal No.12 of 2018 pending before 6th Addl. Sessions Judge, Rajkot. (D) This Honourable Court may be pleased to pass such other and further reliefs as the facts and circumstances of the case require and in the interests of justice."

2. The present petition i.e. Special Criminal Application No.12225 of 2024 is filed for seeking the following reliefs:

"(A) This Hononurable Court may be pleased to admit and allow the present petition;

(B) This Honourable Court may be pleased to issue appropriate writ, order or direction quashing and setting aside the order dated 06.06.2024 passed below Exh. 37 in Criminal Appeal No.13 of 2018 and further be pleased to allow the application Exh. 37 as prayed for;

(C) Pending hearing and final disposal of this petition this Honourable Court may be pleased to stay the impugned order dated 06.06.2024 and further be pleased to stay the further proceedings of Criminal Appeal No.13 of 2018 pending before 6th Addl. Sessions Judge, Rajkot.

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined (D) This Honourable Court may be pleased to pass such other and further reliefs as the facts and circumstances of the case require and in the interests of justice."

3. Heard Mr. Umang Vyas, learned advocate for the petitioner in respective petitions, Mr. Ashish Dagli, learned advocate for the respondent No.2 - complainant and Mr. Tirthraj Jadeja, learned APP for the respondent

- State.

4. Learned advocate for the petitioner has submitted that no prejudice will be caused if permission is granted under Section 391 of the Cr.P.C. and has submitted that powers under Section 391 of the Cr.P.C. can be exercised at any stage and only reason for rejecting application, which is given is that both the proceedings are different. He has submitted that considering the fact that charge-sheet is file in the criminal case and the nature of transaction in the appeal under the Negotiable Instruments Act, it is found that both are interconnected and, therefore, deposition recorded in the criminal case is required to be tested at the appropriate stage. Hence, he prayed for interference of this Court. Page 3 of 9 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:21:46 IST 2025

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined

5. Mr. Ashish Dagli, learned advocate for the respondent No.2 - complainant has submitted that during the course of proceeding under Session 138 of the N.I. Act at the stage of trial, neither FIR nor charge-sheet nor any other document of criminal case is produced by the present petitioner and when the appeal is at the stage of final argument, at that point of time, the application under Section 391 of the Cr.P.C. is filed and therefore, the learned Lower Appellate Court has rightly rejected that application by giving cogent and convincing reasons. Moreover, he has submitted that the court has not considered this suspect that the application amounts of delaying the proceeding as the petitioner has filed the application at the belated stage and that too without any substance in the application. Hence, prays that no interference is required to be called for by this Court.

6. Mr. Tirthraj Jadeja, learned APP for the respondent

- State has supported the submissions made at the bar by Mr. Ashish Dagli, learned advocate for the respondent No.2 - complainant and has submitted that no interference is required to be called for. Page 4 of 9 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:21:46 IST 2025

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined 7.1 I have considered the rival submissions made at the bar. It transpires that two proceedings have been initiated against the present petitioner: one under the Negotiable Instruments Act, 1881, and another under the provisions of Sections 406, 420, 465, 467, 468, 471, and 120B of the Indian Penal Code. In the proceeding under the Negotiable Instruments Act, the trial court has decided the said proceeding against the present petitioner, and the petitioner has preferred an appeal before the Sessions Court. During the pendency of the appeal, the criminal case, pursuant to the FIR filed under Sections 406, 420, 465, 467, 468, 471, and 120B of the Indian Penal Code, is also proceeded, wherein the deposition of witnesses has been recorded and their examination and cross-examination have taken place. Therefore, the present petitioner has filed an application before the learned Sessions Court, in the appeal pending pursuant to the proceeding under the provisions of Section 138 of the N.I. Act, under Section 391 of the Criminal Procedure Code, to permit the petitioner to produce the necessary documents by way of the deposition recorded in the proceeding filed under Sections Page 5 of 9 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:21:46 IST 2025 NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined 406, 420, 465, 467, 468, 471, and 120B of the Indian Penal Code. This application was rejected by the learned lower Appellate Court by giving cogent and convincing reasons, noting that both proceedings are essentially different. The trial court also considered the judgment of the Hon'ble Apex Court, reported in 2024 (1) Crime 104, in the case of Ajitsingh Rathod vs. State of Gujarat, and referred to paragraph 9 of that judgment. After considering the same, the trial court concluded that both proceedings are distinct--one under the Negotiable Instruments Act and the other under the Indian Penal Code--and that the standards of proof required are also different: one requires proof by preponderance of probability, and the other requires proof by beyond a reasonable doubt. Therefore, the learned lower Appellate Court has dismissed the application.

7.2 I have also considered the scope of provisions of Section 391 of the Criminal Procedure Code, which reads as under:

"Section 391 in The Code of Criminal Procedure, 1973:-

391. Appellate Court may take further evidence or direct it to be taken.

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined (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."

7.3 It is not in dispute that such powers can be exercised at any stage, however, considering the fact that the documents, which are now sought to be produced at the stage of appeal, are depositions recorded by the court in the proceeding under Sections 406, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code. Though the transaction might be having some common factors but the appeal is initiated under the Negotiable Instruments Act and another proceeding is initiated under the Indian Penal Code, both have different test.

Page 7 of 9 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:21:46 IST 2025

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined 7.4 It is also noteworthy to note that the petitioner has not produced the copy of FIR or charge-sheet at the time of trial and even at the time of filing of appeal, and thereafter, when the appeal, which is filed under the provisions of Negotiable Instruments Act, is ripe for final arguments; at that point of time, application under Section 391 of the Cr.P.C. is filed. Otherwise also, considering the reasons given by the learned Lower Appellate Court while dismissing the application under Section 391 of the Criminal Procedure Code, those reasons are found in accordance with the materials available on the record and in consonance with the provisions of law. The learned Lower Appellate Court has rightly considered the aspects that both the proceedings, which are filed under the I.P.C. as well as N.I. Act are different and, therefore, there is no need to grant permission to produce such document at such belated stage. Considering the overall facts and circumstances of the case, I found that no error is committed by the learned courts below and accordingly, the present captioned positions are required to be dismissed and are dismissed accordingly with no order as to costs. Page 8 of 9 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:21:46 IST 2025

NEUTRAL CITATION R/SCR.A/12222/2024 ORDER DATED: 20/01/2025 undefined

8. In view of dismissal of main captioned petitions, connected Criminal Misc. Applications would not survive and the same are disposed of accordingly.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 9 of 9 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Jan 24 2025 Downloaded on : Mon Jan 27 21:21:46 IST 2025