Gujarat High Court
Jamunaprasad Jagdishprasad Shukla vs State Of Gujarat on 23 January, 2025
NEUTRAL CITATION
R/SCR.A/940/2025 ORDER DATED: 23/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 940 of 2025
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JAMUNAPRASAD JAGDISHPRASAD SHUKLA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SURAJ A SHUKLA(7185) for the Applicant(s) No. 1
MS JYOTI BHATT, APP for the Respondent No.1 - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 23/01/2025
ORAL ORDER
1. The present petition, under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, is filed by the petitioner - original applicant, for quashing and setting aside the impugned order dated 18.12.2024 passed by the learned Additional Sessions Judge, Court No.7, City Civil and Sessions Court, Ahmedabad City in Criminal Appeal No.114 of 2024 below Ehx.17 and to direct the Forensic Science Laboratory to conduct the forensic comparison of the disputed cheque.
2. Heard learned advocates.
3.1 Learned advocate for the petitioner has submitted that the impugned order suffers from perversity and illegality Page 1 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025 NEUTRAL CITATION R/SCR.A/940/2025 ORDER DATED: 23/01/2025 undefined as the leaned lower appellate Court has erred in appreciating the fact that the main defense of the petitioner is based on Section 87 of the Negotiable Instruments Act, 1887 'the N.I. Act' for short). He has submitted that it is a settled law that once it is proved that the cheque is materially altered, the prosecution becomes void ab initio and therefore, rejecting the petitioner's application for forensic examination of the cheque had amounted to denying a fair opportunity to the petitioner to defend himself, more particularly, when he is facing serious statutory presumptions under the Act. 3.2 In support of his submissions, he has relied upon the decisions of this Court in the cases of :- (i) Gautambhai Bababhai @ Shantibhai Patel versus State of Gujarat reported in 2012 (2) GLR 1073 and (ii) Rameshbhai Jayendabhai Modi versus State of Gujarat reported in 2013 (5) GLR 4317.
4. Leaned APP for the State has opposed the submissions made by the learned advocate for the petitioner. It is submitted that the petitioner had earlier filed the very application before the learned trial Court and the learned trial Court had rejected the same. It is submitted that the petitioner has moved such application again before the learned lower appellate Court which is rejected by the learned lower appellate Court. It is submitted that this Page 2 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025 NEUTRAL CITATION R/SCR.A/940/2025 ORDER DATED: 23/01/2025 undefined petition therefore may not be entertained by this Court. 5.1 I have considered the rival submissions made at the bar. I have perused the impugned order passed by the learned lower appellate Court. I have considered the documents available on record. From the record, it transpires that the petitioner had filed such application before the learned trial Court at Exh.21. The learned trial Court has, after due consideration, rejected the same vide order dated 03.04.2023. It was at the stage of trial before the learned trial Court. It is a matter of record and it is an undisputed fact that the said order dated 03.04.2023 was not challenged by the petitioner before the appellate Court below and therefore, it has attained finality.
5.2 Further, the learned trial Court has, after hearing the parties, rejected the proceeding being Criminal Case No.50151 of 2020, on merit and convicted the present petitioner vide judgment and order dated 09.01.2024. Being aggrieved by and dissatisfied with the said judgment and order dated 09.01.2024, the present petitioner has filed an appeal being Criminal Appeal No.114 of 2024 before the learned appellate Court below, which is pending for adjudication. During the pendency of the appellate proceeding, the petitioner has filed an application at Exh.17 seeking Page 3 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025 NEUTRAL CITATION R/SCR.A/940/2025 ORDER DATED: 23/01/2025 undefined forensic analysis of the contents of the disputed cheque under Section 391 of the Code of Criminal Procedure, pari materia Section 432 of the Bharatiya Nagrik Suraksha Sanhita, 2023. The learned appellate Court below has, after taking into consideration the decisions relied upon by the petitioner, which are relied upon in the present petition, as well as submissions made by the parties, rejected the said application and has observed in Paras : 5 to 8 as under :
" 5. At the outset, it is pertinent to note that the trial Court's order dated 03.04.2023 rejecting the application for forensic analysis was based on a thorough examination of the cheque. The trial court specifically observed that the amount in question was written in both figures and words, negating the appellant's claim of tampering. No material has been placed on record in the present application to show that the findings of the trial court are prima facie erroneous or that fresh evidence warrants a different conclusion.
6. Section 391 of the Cr.P.C. empowers the appellate court to take additional evidence or direct such evidence to be taken when it is essential for the just decision of Page 4 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025 NEUTRAL CITATION R/SCR.A/940/2025 ORDER DATED: 23/01/2025 undefined the case. However, such discretion is to be exercised sparingly and only when the circumstances necessitate additional evidence. In the present case, the appellant has failed to demonstrate how forensic analysis of the cheque at this stage would alter the outcome of the case or that such analysis is indispensable for the just determination of the appeal.
7. Moreover, the plea of alleged tampering with the cheque was already raised and adjudicated before the trial Court. Re-examining the same issue without any new and compelling evidence would amount to re-litigation of the same matter, which is not the purpose of Section 391 of the Cr.P.C.
8. The appellant has relied upon the judgments in Gautambhai Babarbhai Shantibhai Patel versus State of Gujarat [2012 (2) GLR 1073] and Rameshbhai Jayendrabhai Modi versus State of Gujarat [2013 (5) GLR 4317]. However, the facts and circumstances of the present case are distinguishable. The reliance on these Page 5 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025 NEUTRAL CITATION R/SCR.A/940/2025 ORDER DATED: 23/01/2025 undefined citations does not substantiate the appellant's claim of tampering or the necessity of forensic analysis at the appellate stage."
5.3 In view of above, once the very application had been decided by the learned trial Court, such an application should not be entertained again, as no other contentions has been taken by the petitioner in the second application. It is submitted that the difference is the only stage of proceeding. The earlier application was before the learned trial Court and the second one is before the learned lower appellate Court. But the prayers of the petitioner are the similar, which need not be entertained, as prima facie, it transpires that the petitioner, who is now convict, is trying to delay the proceeding before the appellate Court below. Further, the earlier order, which is rejected by the learned trial Court, was not challenged by the petitioner before any higher forum and therefore, it has attained finality. Now, again, filing of similar application, though at the stage of appeal, need not be entertained. This Court finds that there is no perversity or illegality in the impugned order passed by the learned appellate Court below. The learned appellate Court below has rightly passed the impugned order, which is just and proper. 5.4 There cannot be any dispute with regard to the Page 6 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025 NEUTRAL CITATION R/SCR.A/940/2025 ORDER DATED: 23/01/2025 undefined law enunciated in the decisions of this Court relied upon by the learned advocate for the petitioner, however, it cannot be helpful to the petitioner any further in view of the facts and circumstances of the present case. The present case does not fall within the purview of these decisions with such facts. Therefore, the present petition deserves to be rejected as meritless.
6. Under the circumstances, such petition should not be entertained, that too at the stage of appeal and therefore, the present petition needs to be rejected and is rejected at the threshold.
(SANDEEP N. BHATT,J) M.H. DAVE Page 7 of 7 Uploaded by M.H. DAVE(HC00193) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:29:10 IST 2025