Gopal Gupta vs Anil Kumar Jain
2023 Latest Caselaw 3981 MP

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           IN THE HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                                        BEFORE
         HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                          ON THE 14th OF MARCH, 2023

          MISCELLANEOUS CRIMINAL CASE NO.7719 OF 2023

       BETWEEN:-

       GOPAL GUPTA S/O SHRI DEENANATH GUPTA,
       AGED ABOUT 52 YEARS, OCCUPATION-
       BUSINESS, R/O 21- RAVI NAGAR, GWALIOR
       (MADHYA PRADESH)

                                                                      ........PETITIONER

       (BY SHRI SAMEER KUMAR SHRIVASTAVA- ADVOCATE)

       AND

      ANIL KUMAR JAIN S/O LATE SHRI HARI DAS
      JAIN, AGED    51 YEARS,   OCCUPATION-
      BUSINESS, R/O LOHIA BAZAR, DISTRICT-
      MORENA (MADHYA PRADESH)
                                                                     ........RESPONDENT


       (BY SHRI RAJMANI BANSAL- ADVOCATE)
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       This petition coming on for orders this day, the Court passed the
following:
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                                         ORDER

This petition under Section 482 of Cr.P.C has been filed assailing the order dated 28/01/2023 (Annexure P-1) passed by 9 th Additional Sessions

Judge, Gwalior in Criminal Appeal No.326/2022, whereby application under Section 391 of Cr.P.C. has been dismissed.

Brief facts of the case are that on 22/11/2010, respondent filed a complaint under Section 138 of Negotiable Instruments Act alleging that the complainant and the petitioner were college mate since the year 1990 and the complainant is having business of sanitary and iron. In the course of business, accused at various point of time has taken goods on credit and payment of which used to be made in parts. Thereafter, on 30/08/2010, the accused requested the complainant to give Rs.14,80,000/- for his personal requirement on the assurance that the same would be repaid in the first week. Looking the old relation, the complainant gave Rs.14,80,000/- to the accused in cash. After that, the present petitioner allegedly gave one cheque No.347685 of Rs.14,80,000/-, however, when the said cheque was presented, the same was dishonored, therefore, after sending statutory notice, the complaint was filed. Thereafter, trial was conducted and petitioner was convicted by the trial Court under Section 138 of Negotiable Instruments Act against which, he preferred an appeal before the Appellate Court. During the pendency of appeal, he filed an application under Section 391 of Cr.P.C. for leading additional evidence/documents on record regarding missing of cheque for which he had lodged the FIR at Police Station- Huzrat Kotwali, District- Gwalior (M.P.) Learned counsel for the petitioner has submitted that the learned Appellate Court erred in dismissing the said application, as the additional evidence which the petitioner wanted to adduce before the learned appellate Court was of such a nature that would have established his innocence and probably result in his acquittal and the said application is required to be decided at the time of final hearing of appeal. He has relied upon the

judgments of the coordinate Bench of this Court in the cases of Durgesh Kumar Vs. J.B. Singh & another [2016 1 MPWN 5], Pramod Gupta Vs. State of M.P. [2013(3) M.P.L.J.] and Dharmendra Vs. State of M.P. [2006 (1) M.P.L.J.] On the other hand, learned counsel for the respondent opposed the contentions of learned counsel for the petitioner and submitted that as per Section 391 of Cr.P.C., there is no bar in deciding the application before final hearing of the appeal and the learned Appellate Court has not committed any error in dismissing the application under Section 391 of Cr.P.C. In this regard, he relied upon the order of the Apex Court passed in the case of Asim @ Munmun @ Asif Abdulkarim Solanki Vs. State of Gujarat in Criminal Appeal No.184of 2020.

After hearing the submissions made by the counsel for the rival parties, I am of the considered view that learned Appellate Court has not committed any error in dismissing the application under Section 391 of Cr.P.C. Therefore, no fault is visible in the impugned order passed by the learned Appellate Court. Hence, this petition being devoid of merits, is hereby dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE

rahul RAHUL Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001,

SINGH st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82 ab676d0cde4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728C E00D487,

PARIHAR serialNumber=0275C4F803F94C47998BE5C534E21BDE D910FD4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2023.03.21 10:37:50 +05'30'