Madhya Pradesh High Court
Arjun Kukreja vs M/S Vikas Transport Proprietorship ... on 6 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
1 MCRC-16016-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 6 th OF FEBRUARY, 2025
MISC. CRIMINAL CASE No. 16007 of 2024
SUMAN KUKREJA
Versus
M/S VIKAS TRANSPORT PROPRIETORSHIP FIRM THROUGH ITS
LEGAL REPRESENTATIVE VIKAS TORANI
Appearance:
Shri Vijay Kumar Asudani - Advocate for the applicant.
Shri Pankaj Soni - Advocate for the respondent [R-1].
WITH
MISC. CRIMINAL CASE No. 15997 of 2024
SUMAN KUKREJA
Versus
M/S LALIT TRANSPORT PROPRIETORSHIP FIRM THROUGH ITS
LEGAL REPRESENTATIVE RAMESH TORANI
Appearance:
Shri Vijay Kumar Asudani - Advocate for the applicant.
Shri Pankaj Soni - Advocate for the respondent [R-1].
MISC. CRIMINAL CASE No. 16016 of 2024
ARJUN KUKREJA
Versus
M/S VIKAS TRANSPORT PROPRIETORSHIP FIRM THROUGH ITS
LEGAL REPRESENTATIVE VIKAS TORANI
Appearance:
Shri Vijay Kumar Asudani - Advocate for the applicant.
Shri Pankaj Soni - Advocate for the respondent [R-1].
ORDER
2 MCRC-16016-2024
Regard being had to the similitude of the offence, with the joint
request of the parties, these M.Cr.Cs. are finally heard and being decided by
this common order. Facts of M.Cr.C. No. 16007 of 2024 are narrated
hereunder.
2. The present M.Cr.C. is filed challenging the order dated 13.03.2024,
whereby the criminal appeal has been fixed for final arguments without
deciding the application filed under Section 391 of Cr.P.C.
3. The respondent being a complainant filed a complaint under 138 of
Negotiable Instrument Act, 1881 in the year 2001 in the Court of Judicial
Magistrate First Class, Indore in respect of cheque. After following the
procedure prescribed under Proviso to Section 138, the aforesaid complaint
was filed. The present petitioner appeared and contested the entire trial and
both the parties led evidence and finally vide judgment 17.10.2023, the
learned JMFC convicted the appellant. Vide judgment dated 28.12.2022 the
learned JMFC convicted the appellant/ accused for commission of offence
under Section 138 of Negotiable Instrument Act, 1881. Being aggrieved by
the aforesaid, the appellant has preferred CRA No. 1229/2023 which is
pending before the 20th Additional Sessions Judge. In the said appeal, the
appellant filed the application under Section 391 of Cr.P.C. seeking
permission to led the additional evidence i.e. copy of order dated 10.06.2004
passed by the High Court directing registration of F.I.R., appeal memo filed
by Allied Asia Gear Ltd. represented by Ramesh Torani before Custom
Excise Service Tax Appellate Tribunal Delhi and copies of the order dated
17.10.2023 passed by learned JMFC in the case of Reliance vs. Suman. The
3 MCRC-16016-2024
learned Appellate Court vide order dated 13.03.2024 has fixed the appeal for
final arguments meaning thereby, this application shall be considered at the
time of final hearing, hence this present M.Cr.C. is filed before this Court.
4. Shri Asudani, learned counsel for the applicant submits that the
additional evidence sought to be adduced by this present applicant are crucial
in nature, therefore, learned Court ought to have decided the application filed
under Section 391 before final hearing of the appeal. In support of his
contention, he has placed reliance on a judgment passed by the Apex Court
in the case of Asim vs. State of Gujarat reported in (2021) 16 SCC 459, in
which the Apex Court has held that " we are of the opinion that it is desirable
that an application filed under Section 391 should be heard immediately after
it is filed without waiting for the appeal to be finally heard".
5. Learned counsel appearing for the respondent submits that the
complaint was filed in the 2001 and which came to be decided finally in the
year 2022 i.e. after period of 19 years. The criminal appeal is pending since
2023 and more than two years have been passed. The application under
Section 391 has been filed in order to delay the proceedings of the appeal.
All these documents were well within the knowledge of the appellant during
trial. Section 391 nowhere prescribes that this application should be decided
prior to the hearing of criminal appeal and this application can be decided
final hearing of the appeal.
6. In support of his contention, he has placed reliance on a judgment
passed by this Court in the case of Karan Singh vs. Prerit Tiwari and Others
passed in MCRC No. 4313/2024, Pramod Gupta vs. State of M.P. reported
4 MCRC-16016-2024
in 2013 (3) M.P.L.J and Smt. Mamta Sharma vs. State of M.P. and Others
passed in Criminal Revision No. 277/2016 .
7. It is correct that Section 391 only says that in dealing with any
appeal under this Chapter the Appellate Court if think additional evidence to
be necessary shall record its reason and may either take such evidence itself
or directed to be taken by the Magistrate and when the additional evidence is
taken by the Court of Session, it shall clarifies such evidence to the appellate
Court and such Court shall thereupon proceed to disclose of the appeal.
Language of this Section 1 and 2 cumulatively projects that the application
for additional evidence is liable to be decided before final hearing of the
appeal. Sometimes the appellate Court may itself take an evidence or may
direct to the Magistrate or the Sessions Judge as the case may be for taking
such evidence. So far as the oral evidence is concerned, it is certainly
required to be recorded by the Court and right of cross-examination is liable
to be given to the opposite party. But in case of documentary evidence,
certainly the appellate Court can decide whether these documents can be
directly taken at the appellate stage or if no formal proof is required and if
the appellate Court has observed that these documentary evidence shall be
considered at the time of final hearing then certainly the Court will consider
the admissibility of these evidence alongwith other evidence on record at the
time of final hearing.
8. If the appellant has filed an application for taking additional
documents on record and respondents either private complaint or the
Government prosecutor does not oppose this application or object to the
5 MCRC-16016-2024
extent that these additional evidence is required to be proved by way of oral
evidence then certainly, this application filed under Section 391 shall be
decided before final hearing of the appeal. If the opposite party either
complainant or public prosecutor does not oppose this admissibility of the
evidence or formal proof of the evidence then certainly these documentary
evidence can be considered at the time of final hearing alongwith other
evidence if Court comes to the conclusion that this additional evidence is
liable to be considered and having bearing effect on the merit of the case. For
considering the additional evidence admissible or necessary for adjudication
of the appeal, the Appellate Court is required to examine the entire merit of
the case which can be done while the hearing the appeal finally, therefore,
the discretion lies with the Appellate Court looking to the facts and
circumstances of the case whether this application is liable to be decided
prior to the final hearing or at the time of final hearing of the appeal and no
straight jacket formula can be prescribed for this.
9. In the present case, the trial took 19 years to conclude it and if again
the Magistrate is directed to take additional evidence to be taken on record
by way of separate proceedings, it will further cause delay. The applicant has
only filed a documentary evidence and the relevancy of these documents can
be considered at the time of final hearing, therefore, no case for interference
is made out.
10. Accordingly, M.Cr.C. stands dismissed.
Let a copy of this order be kept in the connected M.Cr.Cs. also.
6 MCRC-16016-2024
(VIVEK RUSIA)
JUDGE
Vatan
