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