Madhya Pradesh High Court
Anil vs Ku. Sradha on 23 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 23rd OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 8128 of 2024
BETWEEN:-
ANIL S/O SHRI INDRALAL, AGED ABOUT 34
YEARS, R/O MANA CAMPS BESIDE SHIVAM
CLOTHS HOUSE SINDHIBASTI BURHANPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANKALP KOCHAR - ADVOCATE)
AND
1. KU. SRADHA D/O KARTAAR MAKHIJA,
AGED ABOUT 22 YEARS, R/O MEDHANA
CAMPUS NEAR SABJI MANDI SINDHI BASTI
DISTRICT BURHANPUR (MADHYA
PRADESH)
2. THE STATE OF M.P. DISTRICT
MAGISTRATE BURHANPUR (MADHYA
PRADESH)
.....RESPONDENTS
(RESPONDENT NO.2/ STATE BY SHRI ANIL UPADHYAYA - PANEL LAWYER)
This application coming on for admission this day, the court
passed the following:
ORDER
1. This application under section 482 of Cr.P.C. has been filed against the
order dated 7.2.2024 passed by 14th Additional Sessions Judge,
Jabalpur in Criminal Appeal No.10/2023 by which an application filed
by the applicant under section 391 Cr.P.C. for taking additional
evidence on record has been rejected.
2. It is submitted by counsel for the applicant that multiple complaints
under section 138 of the Negotiable Instruments Act were filed against
different family members of the family. There was no reason for the
family members of the same family to have legally recoverable debt,
therefore, in fact the cheques on the basis of which multiple complaints
under section 138 of the Negotiable Instruments Act were filed against
the applicant, as well as against the family members of the same family
were never issued in discharge of legally recoverable debt, but they
were misused by the complainant. Although certain questions were put
to complainant in this regard, but by mistake, the applicant could not
file the documents showing the institution of multiple complaints under
section 138 of the Negotiable Instruments Act against various members
of the same family and accordingly, an application under section 391
of the Cr.P.C. was filed, which has been rejected by the trial court,
primarily on the ground that no due diligence was exercised by the
applicant in the trial and no good ground has been made out to come to
a conclusion that those documents are necessary for justice decision of
the case.
3. Challenging the order passed by the court below, it is submitted by
counsel for the applicant that the Supreme Court, in the case of
Sudevanand Vs. State through CBI, reported in (2012) 3 SCC 387
has held that delay in filing the applications should not have been the
sole ground for rejecting the applicant's application before the High
Court. Similarly, in the case of Brig. Sukhjeet Singh, (Retd.) MVC
Vs. State of Uttar Pradesh and others decided on 24.1.2019 passed
in Criminal Appeal No.148/2019, it has been held that there are no
fetters on the power under section 391 Cr.P.C. of the Appellate Court.
All powers are conferred to secure the ends of justice. The ultimate
object of judicial administration is to secure the ends of justice.
4. Considered the submissions made by counsel for the applicant.
5. The Supreme Court in the case of Ajit Singh, Chehuji Rathod Vs.
State of Gujarat and another decided on 29.1.2024 in S.L.P. (Crl.)
No.16641/2023 has held as under :-
"9. At the outset, we may note that the law is well-settled by
a catena of judgments rendered by this Court that power to
record additional evidence under Section 391 CrPC should
only be exercised when the party making such request was
prevented from presenting the evidence in the trial despite
due diligence being exercised or that the facts giving rise to
such prayer came to light at a later stage during pendency of
the appeal and that non-recording of such evidence may lead
to failure of justice.
6. It is fairly conceded by counsel for the applicant that the applicant had
put certain questions to the complainant in this regard, in his cross
examination. Since various family members of the applicant were
facing trial under section 138 of the Negotiable Instruments Act,
therefore, the applicant was necessarily in possession of all those
proceedings. However, if the applicant had consciously decided not to
place it on record during the trial, then this Court is of considered
opinion that the trial court did not commit any mistake by rejecting the
application.
7. Furthermore, it cannot be said that the documents sought to be filed by
the applicant, by way of additional evidence, were necessary for just
decision of the case. It cannot be presumed that different members of
the family cannot take loan of money from the complainant at the same
time. Furthermore, every member must have given cheques of
different account numbers and may be of different Banks
8. Be that whatever it may be.
9. Since no jurisdictional error was committed by the trial court,
accordingly, the application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2024.02.23 17:40:10
+05'30'
HS
