Gujarat High Court

Jamunaprasad Jagdishprasad Shukla vs State Of Gujarat on 23 January, 2025

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                              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

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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

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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

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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

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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

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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,