M/S Gandhi Sales Thr. Partner ... vs Prakash M. Khandelwal Prop. M/S ...
2017 Latest Caselaw 7533 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.

                    CRIMINAL WRIT PETITION NO. 351 OF 2016


1. M/s Gandhi Sales (A Partnership
     Firm now dissolved) through its
     erstwhile partner Pankaj Gandhi
     resident of A-401, Raj Heera 
     Residency, 42, Shaniwarpeth, 
     Pune - 411 030.

2. Pankaj s/o Rasiklal Gandhi 
     (Partner of the dissolved firm
     M/s Gandhi Sales) aged about 52 
     Years, Occupation Business, 
     resident of A-401, Raj Heera
     Residency, 42, Shaniwarpeth,
     Pune - 411 030.

3. Heena w/o Pankaj Gandhi (Partner
     of the dissolved firm M/s Gandhi
     Sales) aged about 49 years, 
     Occupation Business, resident of 
     A-4-1, Raj Heera Residency, 42, 
     Shaniwarpeth, Pune - 411 030.                             ... PETITIONERS

                                        VERSUS

Prakash M. Khandelwal, Proprietor of
M/s Gulabchand Badrinarayan, aged 
about 51 years, Occupation Business,
resident of SF-1, Durga Vihar, Hill Top,
Ram Nagar, Nagpur.                                             ... RESPONDENT


                                             ....

Shri G.L. Bajaj, Advocate for the petitioners.
Shri   A.B.   Deshpande,   Advocate   h/f   Shri   M.D.   Samel,   Advocate   for   the 
respondent.
                                        ....




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                                        CORAM : P.N. DESHMUKH, J.

DATE OF RESERVING THE JUDGMENT  : 21ST SEPTEMBER, 2017.

DATE OF PRONOUNCING THE JUDGMENT :     TH SEPTEMBER, 2017.


JUDGMENT : 

Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties.

2. This petition challenges impugned order passed by the learned

Additional Sessions Judge, Nagpur in Criminal Appeal No. 08 of 2009 on

dated 01st September, 2015, thereby rejecting application filed by the

petitioners under Section 391 of the Code of Criminal Procedure praying

for directions to the trial Court to record additional evidence.

3. To understand controversy involved in the present petition,

following facts in brief are necessary to be stated. The petitioners are

original accused in Criminal Complaint Case No. 4800 of 2005 initiated by

respondent under Section 138 of Negotiable Instruments Act. By

judgment of the learned trial Court, the petitioners came to be convicted

and are sentenced to suffer SI for one month and are directed to pay

compensation of rupees eight lakhs, jointly and severally to respondent

within one month from the date of order and in default of payment of

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compensation, are awarded further SI for one month. The petitioners

assailed this judgment before the learned Additional Sessions Judge, by

filing Criminal Appeal No. 08 of 2009 and during the course of hearing of

this appeal, filed an application seeking permission for leading additional

evidence or to issue directions to trial Court to allow the petitioners to

bring on record additional evidence which came to be rejected under

impugned order, as aforesaid.

4. Shri G.L. Bajaj, learned Counsel for the petitioners has

submitted that the disputed cheque was drawn on a bank account which

was in the name of petitioner No.1 which is a partnership firm which came

to be dissolved with effect from 31st March, 2004 by its partners by

executing dissolution deed on that date. It is, therefore, submitted that

partnership firm having dissolved, as aforesaid, in view of provisions of

Section 63 of Indian Partnership Act, 1932 and Rule 4 of Maharashtra

Partnership Rules, 1989, the petitioners were under obligation to intimate

such dissolution by submitting Form-E to the Registrar of Firms which was

accordingly submitted on 07.05.2004. It is, therefore, the case of

petitioners that as the petitioners were registered partnership firm and as

was dissolved with effect from 31st March, 2004 of which intimation of

dissolution was submitted as aforesaid on 07.05.2004, the disputed cheque

is of no legal consequences and has, therefore, submitted that such cheque

cannot attract penal provisions of Section 138 of Negotiable Instruments

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Act, 1881.

5. It is further submitted that the petitioners are not having any

legal knowledge and cannot be said to be fully literate persons though they

are carrying out business and as such were totally relying upon the

Counsel appointed by them to defend their case before the trial Court but,

unfortunately he failed to bring on record said fact of dissolution of firm

and of presentation of cheque by respondent after such dissolution and

also after presentation of Form-E by the petitioners. It is thus contended

that even if above stated facts were within the knowledge of petitioners

and were brought to the notice their lawyer pending trial, he has failed to

bring this material evidence on record by not appreciating its importance

and consequences of non production of such evidence. It is thus

submitted that, application under Section 391 of Code of Criminal

Procedure filed for allowing additional evidence on record needs to be

allowed by setting aside impugned order by which it came to be rejected.

6. Learned Counsel for respondent, (original complainant) has

contended that as a matter of fact, the petitioners admittedly had a

business relations with respondent for purchase of various goods during

the period from 25.12.2003 to 24.04.2004 which fact can be established

from the bill dated 24.04.2004 valued for Rs.1,60,290/- on record. It is

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further submitted that even according to evidence of petitioner, he has

admitted purchase of goods from respondent under delivery memo on

27.04.2004 further admitting signature on delivery memo. It is further

submitted that petitioners' witness in the evidence has admitted of

payment made to respondent on 08.04.2004 to the extent of rupees three

lakhs by demand draft and during the entire evidence before the trial

Court, had not pleaded nor brought on record fact of dissolution of firm on

31.03.2004. It is, therefore, contended that in view of evidence on record,

as aforesaid, there is no substance now to allow the application to

establish fact of dissolution of firm on 31st March, 2004 which from the

evidence as above on the fact of it, appears to be afterthought and

irrelevant and has thus contended that the petition is liable to be

dismissed.

7. In view of the facts involved in the petition, as aforesaid, it is

material to note that during long pendency of complaint before the

learned trial Court, though the petitioners had ample opportunity to plead

their case of so called dissolution of firm by leading evidence, no such

recourse has been adopted for the period of nine years. Even otherwise

neither it is the case of petitioners that they at any time earlier has brought

this fact to the notice of public at large by issuing public notice of

dissolution of their firm which admittedly is mandatory under the

provisions of Indian Partnership Act; while respondent has a specific case

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establishing business transaction even after 31.03.2004 and has denied

that the disputed cheques were issued after dissolution of firm. Moreover,

it is further material to note that such an application for leading additional

evidence has been filed in an appeal at the stage of its final hearing which

is found to be pending for hearing for more than four years. In the light of

factual position of the petition, as aforesaid, there appears no substance in

it either on merits or on the point of law as the petitioners' conduct itself

demonstrates that there was no such deed of dissolution nor they have

acted upon it to dissolve the firm on 31.03.2004 and in fact as aforesaid

from the evidence, it is found that business relations and transaction

between petitioners and respondent continued even after 31st March, 2004.

It is, therefore, found that by filing such application, petitioners wanted

top prolong the hearing of appeal without sufficient cause.

8. In support of present petition, learned Counsel for the

petitioners has relied upon the judgments of Apex Court in the cases of

Zahira Habibullah Sheikh (5) and another .v. State of Gujarat and others

(reported in 2006(3) SCC, 374); Zahira Habibullah Sheikh (5) and

another .v. State of Gujarat and others (reported in 2004(4) SCC, 158);

Sudevanand .v. State through Central Bureau of Investigation (reported

in 2012 (3) SCC, 387) and Rambhau and another .v. State of Maharashtra

(reported in 2001(4) SCC, 749). In the case of Zahira Habibullah Sheikh

(5) and another .v. State of Gujarat and others (cited supra), oral evidence

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was permitted to be led in exceptional case where witnesses are threatened

and are forced to make wrong statement before the trial Court. Moreover,

both the judgments in the case of Zahira Habibullah Sheikh (5) and

another .v. State of Gujarat and others (cited supra) are not relevant in view

of the fact that they are not pertaining to filing of documents as sought to

be done before the appellate Court by filing application under Section 391

of Code of Criminal Procedure.

9. Similarly, authorities in the case of Sudevanand .v. State

through Central Bureau of Investigation (cited supra), application was

under Section 311 read with Section 391 of Code of Criminal Procedure for

recalling of approver wherein it was concluded that such statement of

approver is beyond legal framework and accused may ask for recalling the

approver, which law is thus not relevant in the present petition.

10. Similarly, in the case of Rambhau and another .v. State of

Maharashtra (cited supra), the Hon'ble Apex Court in para 4 thereof has

observed that Section 391 forms an exception to the general rules and

powers thereunder shall have to be exercised with caution and

circumspection to meet the ends of justice. It is categorically laid down

that this provision is not be invoked to fill up lacuna but to subserve the

ends of justice.

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11. On the subsequent date of hearing, learned Counsel for the

petitioner had cited further bunch of judgments which are listed as below.

(i)             Umesh Chandra .v. State of Rajasthan 
                (reported in 1982 (2) SCC, 202);

(ii)            Mahant Bhagwan Bhagat .v. G.N. Bhagat and others
                (reported in 1972 (1) SCC, 486);

(iii)           Ramaswamy (dead) by LRs. .v. M. Lobo (dead) by LRs.
                (reported in 2001 (10) SCC, 176);

(iv)            Murarka Properties (P) Ltd .v. Beharilal Murarka and others
                (reported in 1978 (1) SCC, 109);

(v)             Banarsi Dass .v. Brig. Maharaja Sukhjit Singh & another
                (reported in 1998 (2) SCC, 81);

(vi)            Roop Singh (dead) through LRs. .v. Ram Singh (dead) through  
                LRs. (reported in 2000 (3) SCC, 708);

(vii)           Sri Bhimeshwara Swami Varu Temple .v. Pedapudi Krishna  

Murthi and others (reported in 1973 (2) SCC, 261);

(viii) Phiroze Bamanji Desai .v. Chandrakant N. Patel and others (reported in 1974 (1) SCC, 661);

(ix) Gurnam Singh and others .v. Surjit Singh and others (reported in 1975 (4) SCC, 404);

(x) Central Bureau of Investigation .v. Ashok Kumar Aggarwal (reported in 2014 (14) SCC, 295);

(xi) J. Yashoda .v. K. Shobha Rani (reported in 2007 (5) SCC, 730); and

(xii) Kalyan Kumar Gogoi .v. Ashutosh Agnihotri and another (reported in 2011 (2) SCC, 532).

12. I have carefully gone through the judgments relied upon by the

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learned Counsel for the petitioners, however, found that neither of these

judgments can be used in favour of the petitioners having distinguishing

facts on material aspects of the case. Facts involved in these cases are

totally divergent against the relief sought in the present petition. In fact it

is found that the petitioners are not coming with their case as put forth in

the present petition for the period of nine years before the trial Court and

thereafter for four years before the appellate Court, as such there is reason

to believe that the petitioners are relying upon certain fabricated and

forged documents at the appellate stage and by filing such application

have made an attempt to bring such evidence on record which cannot be

permissible under section 391 of Code of Criminal Procedure. Above

findings are supported with the case of petitioners themselves, when from

their evidence, it has come on record that the petitioners have received

goods from the respondent under bill dated 24.04.2004 for Rs.1,60,290/-

and have further admitted payment of rupees three lakhs to respondent on

08.04.2004 which goes to show that the petitioner/firm was continuing its

business as well as operating its bank account under which disputed

cheque is issued even after 31st March, 2004. It is, therefore, necessary to

observe that the petitioners cannot be permitted to falsify their own

statements on oath by bringing on record fact of dissolution of firm on 31st

March, 2004.

13. In view of the facts, reasons in the petition and above and as

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the citations relied for petitioners, since are found absolutely irrelevant, to

the facts involved in the instant petition, the same is liable to be dismissed,

as even on otherwise scheme as enumerated in Section 391 of Code of

Criminal Procedure does not contemplate production of documentary

evidence. Plain reading of sub sections of Section 391 of Code of Criminal

Procedure clearly shows that the word "evidence" used in these sub

sections is oral evidence.

"Under sub-section (1) the Appellate Court is empowered to take evidence itself or direct it to be taken by the Magistrate or by the trial Court. The 'taking of the evidence' obviously means recording of oral evidence. So also under sub-section (2) the evidence is to be certified by the Magistrate or the Court taking such evidence. This further shows that the provision is meant for taking oral evidence only. There is no question of certifying of the documentary evidence by the Court. Sub-section (3) also gives the same indication. So also sub-section (4)."

Thus the appellate Court cannot permit production of new document in

exercise of its powers under Section 391 of Code of Criminal Procedure.

14. In the result, the writ petition is dismissed. Rule is discharged.

Criminal Appeal No. 08 of 2009 pending on the file of learned Additional

Sessions Judge-5, Nagpur is expected to be decided preferably within two

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months from the date of receipt of this writ.

JUDGE

*rrg.