Gujarat High Court
Shivam Machine Tools, Thro Proprietor ... vs State Of Gujarat on 7 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO.11593 of 2024
(QUASHING)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
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SHIVAM MACHINE TOOLS,
THRO PROPRIETOR MAHESHBHAI SHIVABHAI TILALA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DHAIRYAWAN D BHATT(11817) for the Applicant(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2
MR SOAHAM JOSHI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 07/01/2025
ORAL JUDGMENT
1. By filing instant petition under Articles 226 and
227 of the Constitution of India as well as under
Section 528 of the Bhartiya Nagrik Sauraksha
Sanhita, 2023, the petitioner has challenged the
order dated 23.08.2024 passed by the learned 8 th
Additional Sessions Judge, Rajkot in Criminal
Revision Application No.111 of 2024 upholding the
order dated 27.06.2024 passed below application,
Exh.87 by learned 14th Additional Chief Judicial
Magistrate, Rajkot in Criminal Case No.4440/2017,
whereby the application preferred by the
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petitioner has been rejected.
2. The facts of the case giving rise to file present
petition are as under,
2.1 The petitioner is an accused in Criminal
Complaint No.5540/2017 filed by the
respondent no.2 herein under Section 138 of
the Negotiable Instrument Act for the
dishonour of the cheque, wherein the summons
was issued and in pursuance thereto, the
petitioner appeared and, thereafter, trial
has proceeded further.
2.2 Thereafter during the course of trial, plea
of the petitioner was recorded, wherein he
denied the case of the complainant and
claimed to be tried.
2.3 Thereafter, both the parties have led their
oral as well as documentary evidence and also
cross-examined the witnesses.
2.4 After the prosecution evidence was over,
further statement of the accused came to be
recorded under Section 313 of the Code and at
that point of time, the petitioner has made
specific statement that he does not wish to
lead evidence, thereafter, he also filed
closing purshis and the matter reached at the
stage of final arguments.
2.5 However when the trial was at the stage of
argument of the complainant, the petitioner
submitted an application, Exh.87 inter alia
praying for production one document i.e.
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letter dated 02.05.2017 addressed to
Mayurbhai Dhandhiya. However by an order
dated 27.06.2024 rejected the said
application.
2.6 Against the aforesaid order, Criminal
Revision Application No.111/2024 was filed
before the learned District Court, who by an
order dated 23.08.2024 rejected the said
revision application. Hence, this petition.
3. Heard learned advocate, Mr. Dhairyawan Bhatt for
the petitioner, learned APP Mr. Soaham Joshi for
the respondent no.1 and learned advocate, Mr.
Pratik Jasani for the respondent no.2.
4. Learned advocate, Mr. Bhatt submitted that as
stated above, the petitioner is an accused of the
complaint filed by the respondent no.2 herein and
since from the very beginning of the institution
of the complaint, it was the defence raised by the
petitioner that the complainant has misused the
cheque, which was handed over by the petitioner to
third party and immediately on receipt of the
notice from the complainant about the dishonour of
the cheque, a detailed reply was given by the
petitioner. Learned advocate submitted that in
fact, the petitioner herein has already issued a
letter in the form of notice to one Mayurbhai
Dhandhiya by specifically narrating the above
stated factual aspects, more particularly,
particular of the cheques assigned to him are
given and also stated that there are all chances
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that he will misuse the said cheques and the
transaction took place between the parties is
already over as the amount has already been repaid
to him, therefore, the petitioner has already
preferred an application to stop the payment of
the cheques issued by him of particular numbers,
however, the said Mayurbhai Dhandhiya has
registered complaint against the present applicant
and in the said proceedings, copy of letter dated
02.05.2017 has already been placed on record,
which the applicant would like to place on record
to bring correct facts on record and on the
strength of it, the applicant seeks cross
examination of the witnesses and for the purpose
of just and fair trial, the said document is
required to be brought on record, however without
properly considering the said fact, the learned
Judge has rejected the said application and the
said fact was not properly considered by the
learned Appellate Court in revision application
and rejected the same. Learned advocate submitted
that the learned Judge has not assigned any
independent reason and simply by reproducing the
reasons assigned by the learned trial court, the
learned Sessions Judge has rejected the revision
application preferred by the petitioner and thus,
in short, it is a non-speaking order, therefore,
the same may be quashed and set aside solely on
the ground that no opinion is expressed by the
learned Appellate Court about the maintainability
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of the order. It is, therefore, urged that the
present petition may be allowed as prayed for.
5. Learned advocate further submitted that it is
settled proposition of law that the application to
recall the witness as well as production of the
additional document can be preferred at any time,
that too, even before pronouncement of the
judgment also and admittedly herein in this case
on hand, the evidence of the parties have been
concluded and the matter is at the stage of
argument of the complainant. Learned advocate, at
this stage, has placed reliance upon following
decisions,
(1) the judgment of the Hon'ble Supreme Court
in case of Varsha Garg Vs. State of Madhya
Pradesh & Ors., reported in 2022 (3) Crimes
(SC) 211;
(2) the judgment of the Hon'ble Supreme Court
in case of Godrej Pacific Tech Ltd. Vs.
Computer Joint India Ltd., reported in
(2008) 11 SCC 108;
(3) the judgment of the Hon'ble Supreme Court
in case of P.Chhaganlal Daga Vs. M. Sanjay
Shaw, reported in (2003) 11 SCC 486;
6. Referring to the aforesaid decisions of the
Hon'ble Supreme Court, it is submitted that the
ratio enunciated in the aforesaid decisions
clearly goes on to show that power under Section
311 of the CrPC can be exercised at any given
point of time. It is, therefore, urged that the
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present petition may be allowed.
7. On the other hand, learned advocate for the
original complainant, Mr. Pratik Jasani has
opposed the present petition with a vehemence and
submitted that the application, Exh.87 is
preferred with sole intent to derail the
proceedings. He submitted that even otherwise,
there are concurrent findings of facts based upon
material available on record, which do not require
any interference from the hands of this Hon'ble
Court. Learned advocate submitted that at the time
of assigning the reasons, the learned Judge has
discussed entire facts involved in the matter in a
great detailed and exhaustively entire sequence of
events of incidents have been mentioned. He
submitted that while passing order by the learned
trial judge, it has been specifically observed
that it is the defence of the petitioner right
from the inception of the institution of the
complaint that the said fact of letter was well
within the knowledge of the accused since
beginning of incident and immediately after
receipt of the copy of the notice, he filed reply
by narrating the said fact, therefore, it is not
the case of the accused that subsequently he has
discovered new facts and based upon discovery of
the said document, the said set of document is
required to be brought on record. Learned advocate
submitted that at the time of deciding the said
application, the learned Judge has observed that
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not a single question was being asked to the
complainant in that regard by the accused at the
time of making cross-examination of witnesses and
complainant, the accused has never made any
attempt to bring those set of evidence on record
by asking those questions in defence to bring
material fact on record, therefore, the judgment
and order passed by both the learned Courts below
are just, fair, reasonable and based on sound
principle of law, which requires any interference
at the hands of this Hon'ble Court.
8. Learned advocate, at this stage, has placed
reliance upon following decisions,
(1) the judgment of this Hon'ble Court in case of
Iqbal Ahmed Abdul Karim Khatri Vs. State of
Gujarat, reported in 2024 (1) DCR 46;
9. Referring to the aforesaid decisions, it is
submitted that the case of the respondent no.2 is
squarely covered by those decisions, therefore,
the present petition may be rejected.
10. No other and further submissions are canvassed by
learned advocates for the parties.
11. Having heard learned advocates appearing for the
parties and having gone through the material and
evidence available on record, it is found out that
the petitioner is an accused in the complaint
filed by the respondent no.2 herein under Section
138 of the NI Act, wherein the trial had proceeded
and both the parties had led oral as well as
documentary evidence and, thereafter, the trial
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was proceeded and when it was at the state of
argument of the prosecution, the petitioner has
submitted an application for production of
documents and for opening the rights to cross-
examine the witness, which by reasoned order had
been rejected by the learned Judge concerned and
the said order had been upheld by the learned
Appellate Court in the revision application,
therefore, the said orders have been assailed in
the present petition.
12. It is fruitful to refer provision of Section 311
of the CrPC, which reads as under,
311. Power to summon material witness, or examine
person present.
Any Court may, at any stage of any inquiry,
trial or other proceeding under this Code,
summon any person in attendance, though not
summoned as a witness, or recall and re-
examine any person already examined; and the
Court shall summon and examine or recall and
re-examine any such person if his evidence
appears to it to be essential to the just
decision of the case.
13. It is not in dispute that in view of the above
provision, the Court can examine any witness at
any stage of the trial and it is the duty of the
Court to examine all the available witnesses to
appreciate all the available evidences pursuant to
the matters pending before the trial court with a
view to finding out the truth involve in the
matters. In the present case, the petitioner is
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facing trial in connection with the complaint
registered under Section 138 of the NI Act and the
trial in connection with the said case is at the
stage of argument of prosecution and in between,
both the parties have led oral as well as
documentary evidence and the examination of the
witnesses as also cross-examination of the
witnesses are also. However now when the matter is
at the stage of argument of complainant, the
petitioner submitted an application, Exh.87 for
production of one document, which in fact was in
well within the knowledge of the petitioner. It is
the specific case of the petitioner that the
impugned cheque, for which, complaint has been
filed by the complainant, had not been given by
him and in fact, the said cheque was given to one
Mayurbhai Dhandhiya, for which, letter was
addressed to the bank for the stop payment and
notice to that effect was also issued to said
Mayurbhai Dhandhiya and thus, all above facts were
well within the knowledge of the petitioner not
only at the time of leading evidence but also at
the time of examining and cross-examining the
witnesses but not a single question was put in
that regard and later on, at the stage of argument
of prosecution, aforesaid application was
preferred, which was rightly considered by both
the learned Courts below turning down his request.
Therefore, considering the judgment of the Honble
Supreme Court in the case of Harendra Rai vs.
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State of Bihar, reported in 2023 SCC Online SC
1023, whereby it is held that Section 311 of the
CrPC should be invoked when it is essential for
the just decision of the case. The Supreme Court
Court has also considered the scope of Section 311
of the CrPC. in the case of Rajaram Prasad Vs.
State of Bihar, reported in (2013) 14 SCC 461, and
culled out following principles, as under:
a) Whether the Court is right in thinking that
the new evidence is needed by it? Whether the
evidence sought to be led in under Section
311 is noted by the Court for a just decision
of a case?
b) The exercise of the widest discretionary
power under Section 311 Cr.P.C. should ensure
that the judgment should not be rendered on
inchoate, inconclusive speculative
presentation of facts, as thereby the ends of
justice would be defeated.
c) If evidence of any witness appears to the
Court to be essential to the just decision of
the case, it is the power of the Court to
summon and examine or recall and re-examine
any such person.
Cr.P.C. should be resorted to only with the
object of finding out the truth or obtaining
proper proof for such facts, which will lead
to a just and correct decision of the case.
e) The exercise of the said power cannot be
dubbed as filling in a lacuna in a
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prosecution case, unless the facts and
circumstances of the case make it apparent
that the exercise of power by the Court would
result in causing serious prejudice to the
accused, resulting in miscarriage of justice.
f) The wide discretionary power should be
exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in
every respect essential to examine such a
witness or to recall him for further
examination in order to arrive at a just
decision of the case.
h) The object of Section 311 Cr.P.C.
simultaneously imposes a duty on the Court to
determine the truth and to render a just
decision.
i) The Court arrives at the conclusion that
additional evidence is necessary, not because
it would be impossible to pronounce the
judgment without it, but because there would
be a failure of justice without such evidence
being considered.
j) Exigency of the situation, fair play and good
sense should be the safe guard, while
exercising the discretion. The Court should
bear in mind that no party in a trial can be
foreclosed from correcting errors and that if
proper evidence was not adduced or a relevant
material was not brought on record due to any
inadvertence, the Court should be magnanimous
in permitting such mistakes to be rectified.
k) The Court should be conscious of the position
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that after all the trial is basically for the
prisoners and the Court should afford an
opportunity to them in the fairest manner
possible. In that parity of reasoning, it
would be safe to err in favour of the accused
getting an opportunity rather than protecting
the prosecution against possible prejudice at
the cost of the accused. The Court should
bear in mind that improper or capricious
exercise of such a discretionary power, may
lead to undesirable results.
l) The additional evidence must not be received
as a disguise or to change the nature of the
case against any of the party.
m) The power must be exercised keeping in mind
that the evidence that is likely to be
tendered, would be germane to the issue
involved and also ensure that an opportunity
of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in
order to meet the ends of justice for strong
and valid reasons and the same must be
exercised with care, caution and
circumspection. The Court should bear in mind
that fair trial entails the interest of the
accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned, must
be ensured being a constitutional goal, as
well as a human right.
14. The scope and object of the provision is to enable
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the court to determine the truth and to render a
just decision after discovering all relevant facts
and obtaining proper proof of such facts, to
arrive at a just decision of the case. Further,
the power must be exercised judiciously and not
capriciously or arbitrarily, as any improper or
capricious exercise of such power may lead to
undesirable results. An application under Section
311 CrPC must not be allowed only to fill up a
lacuna in the case of the prosecution, or of the
defence, or to the disadvantage of the accused, or
to cause serious prejudice to the defence of the
accused, or to give an unfair advantage to the
opposite party. Further, the additional evidence
must not be received as a disguise for retrial, or
to change the nature of the case against either of
the parties. Such a power must be exercised,
provided that the evidence that is likely to be
tendered by a witness, is germane to the issue
involved. An opportunity of rebuttal however, must
be given to the other party. The power conferred
under Section 311 CrPC must therefore, be invoked
by the court only in order to meet the ends of
justice, for strong and valid reasons, and the
same must be exercised with great caution and
circumspection. The very use of words such as "any
Court", "at any stage", or "or any enquiry, trial
or other proceedings", "any person" and "any such
person" clearly spells out that the provisions of
this section have been expressed in the widest
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possible terms, and do not limit the discretion of
the Court in any way. There is thus no escape if
the fresh evidence to be obtained is essential to
the just decision of the case. The determinative
factor should therefore be, whether the summoning/
recalling of the said witness is in fact,
essential to the just decision of the case.
15. Now coming to the facts of the present case, it
appears that the petitioner has cross examined the
complainant on the aspect of issuance of cheque.
In that view of the matter, both the learned
Courts below did not find any merit in the
applications moved by the petitioner under Section
311 of the CrPC, which in my considered opinion do
not require any interference at the hands of this
Ho'ble Court.
16. I have also gone through the decisions relied upon
by the learned advocate for the applicant. There
is no quarrel about the ratio of the judgments of
cited at the bar by the learned advocate for the
petitioner, which are otherwise binding to this
Court. However in the facts of the present case,
the aforesaid decisions relied upon by learned
advocate for the petitioner are of no help to him
empowers the Courts to invoke its power in this
regard at any stage until the judgment is
pronounced but at the same time, it has also been
said that the power must be used judiciously and
not capriciously or arbitrarily. Furthermore,
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there is no dispute about the fact that normally,
the Court can grant prayers at any stage of the
trial if the Court is of the opinion that such
application under Section 311 of the CrPC is
required to be granted. I found that the reasons
assigned by the trial court are possible and
appropriate looking to the facts and circumstances
of the present case. It can certainly be
considered an attempt to filling in the lacuna by
filing such application by the defence, more
particularly, when the deposition is already
recorded, the defence is well aware of the
contents of the deposition, which is recorded
examining and cross examining of such witness.
However it seems that filing of such application
is nothing but an attempt to dealy the proceeding
and, therefore, I am of the view that granting of
such application, at this fag end more
particularly at the time of canvassing the
arguments of the parties, will create serious
prejudice to the rights of the complainant.
Further I have considered the impugned orders
passed by both learned Courts below, which are as
per the records and in consonance with the
provisions of law and the facts of the present
case. In light of the overall, I am of the view
that there is no perversity, illegality and error
committed by both the learned Courts below while
passing impugned orders and hence, the present
petition is found meritless.
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17. For the foregoing reasons, I see no reason to
disturb the impugned orders in exercise of my
supervisory jurisdiction under Article 227 of the
Constitution of India. Therefore, the present
petition is bereft of any merits and thereby
requires to be rejected and the same is
accordingly rejected. Notice is discharged.
Interim relief granted earlier is vacated.
18. After completion of the dictation, learned
advocate for the petitioner has requested for stay
of the present order for a period of four weeks to
enable the petitioner to approach higher forum
considering the fact that the stay is operating
till date. Learned advocate for the respondent
no.2 has objected to the said request. However
considering the fact that the stay is operating
till date, the request of learned advocate for the
petitioner is accepted and the stay granted by the
Coordinate Bench of this Court is continued for a
further period of four weeks.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
