Madhya Pradesh High Court
Vinod Raghuvanshi vs Ajay Arora on 26 March, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
MISC. CRIMINAL CASE No. 39743 of 2024
VINOD RAGHUVANSHI
Versus
AJAY ARORA
Appearance:
Shri Sanjay K. Agrawal - Senior Advocate with Shri Yashovardhan Jain -
Advocate for the applicant.
Shri Anil Khare - Senior Advocate with Shri Aman Gupta - Advocate for
the respondent.
Reserved on : 12.11.2024
Pronounced on : 26.03.2025
.......................................................................................................................................................
ORDER
The applicant has filed present petition under Section 528 of B.N.S.S.
against order dated 09.08.2024 passed in CRA. No.489/2023 by XXI
Additional Sessions Judge, District Bhopal (M.P.) by which the application
preferred by applicant under Section 391 of Cr.P.C. for taking additional
evidence has been rejected.
2. Brief facts of the case are that the applicant being State
Government employee had retired from the post of Deputy Commissioner
(Excise). In the year 2003, he was posted as District Excise Officer, Bhopal.
The liquor shops situated in Bhopal were put to auction and the same was
allotted in favour of Ashoka Traders. The auction proceedings were
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conducted by a committee headed by then Collector, Bhopal, Shri Anurag
Jain, who sent the report to the Excise Commissioner for approval of auction
proceedings vide letter dated 11.03.2003 (Annexure A/1). Thereafter, the
applicant was transferred from Bhopal on 12.06.2003.
2.1 The respondent/complainant submitted a complaint that
partnership deed of Ms. Ashoka Traders was changed by officers and
employees of Excise Department. On the basis of said complaint, the state
government called a report from the Collector, Bhopal, who sent the report
on 04.09.2003 (Annexure A/2). In that report, the Collector has written that
partnership deed was submitted on the date of auction proceedings.
Thereafter, the complainant filed a writ petition before Coordinate Bench of
this Court WP. No.28262/2003, which was disposed of vide order dated
05.01.2004 (Annexure A/3) by directing the State Government to decide the
representation filed by complainant. In pursuance of order dated 05.01.2004
passed by Coordinate Bench of this Court, the Commissioner (Excise)
directed Shri Bharat Kumar Vyas, Additional Commissioner (Excise) to
enquire into the complaint made by complainant. Thereafter, Shri Bharat
Kumar Vyas submitted a preliminary report dated 02.12.2005 (Annexure
A/4) in which he found that present applicant and other officers have
changed the partnership deed. The present applicant has sent an incorrect
report through Collector to Chief Secretary. The Commissioner (Excise)
found that there is inconsistency in the report submitted by Collector,
Bhopal, Shri Anurag Jain and inquiry report submitted by Additional
Commissioner (Excise), Shri Bharat Kumar Vyas. Therefore, he directed to
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conduct second enquiry by another officer Shri D.R. Johri, who in its enquiry
report (Annexure A/5) found that there is no direct evidence against present
applicant and other officers, therefore they cannot be held responsible for the
same.
2.2 After considering the representation submitted by the complainant,
the Principal Secretary, Department of Commercial Taxes held that no
irregularity was committed in the auction proceedings. He also disapproved
the report submitted by Shri Bharat Kumar Vyas and Shri D.R. Johri and
rejected the representation of complainant. Thereafter,
respondent/complainant filed another writ petition WP. No.2617/2007 before
this Court and the Coordinate Bench of this Court dismissed the said WP by
order dated 08.04.2008 (Annexure A/7) by holding that report submitted Shri
Bharat Kumar Vyas has been considered and rejected by the State
Government. Thus, it is clear that the inquiry report submitted by Shri Bharat
Kumar Vyas was considered and disapproved by the State Government. In
this regard, a public interest litigation WP (PIL) No.20614/2013 was also
filed before this Court, which was also dismissed by order dated 14.08.2014
(Annexure A/8).
2.3 Thereafter, the complainant filed a complaint under Section 200 of
Cr.P.C. before C.J.M.. (Annexure A/9), Bhopal alleging for commission of
offences under Section 420, 467, 468, 471/120-B of IPC. The Trial Court
registered the case against the applicant and co-accused during the trial, the
applicant filed an application under Section 243/247 of Cr.P.C. before the
Trial Court for summoning Shri Anurag Jain, then Collector, Bhopal as
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defence witness, which was dismissed by Trial Court vide order dated
26.12.2022 (Annexure A/10). Being aggrieved the said order, the applicant
preferred a revision before Revisional Court, which was also dismissed vide
order dated 08.05.2023 passed in CRR. No.13/2023 by XII Additional
Sessions Judge, District Bhopal (M.P.) (Annexure A/11). Learned Trial
Court convicted the applicant under Section 420 and 120-B of IPC vide
judgment dated 29.08.2023 (Annexure A/12). Against said judgment, the
applicant filed a criminal appeal before Appellate Court which was
registered as CRA. No.489/2023. During the pendency of said criminal
appeal, the applicant filed an application under Section 391 of Cr.P.C.
(Annexure A/13) for caling Shri Anurag Jain as defence witness, which was
dismissed vide impugned order dated 09.08.2024 (Annexure A/14). Hence,
the applicant has filed present petition before this Court.
3. Learned senior counsel for the applicant has contended that the
applicant has been convicted by the Trial Court solely on the basis of report
submitted by Shri Bharat Kumar Vyas, Additional Excise Commissioner in
which Shri Vyas has mentioned that the applicant has managed to send an
incorrect report through Collector, Bhopal on 04.09.2003. Shri Anurag Jain,
then Collector, Bhopal can explain as to whether the report was sent by him
on seeing official records or the same was sent only at the instance of present
applicant. Though report sent by Collector Shri Anurag Jain has already been
exhibited in the evidence, but oral testimony of Shri Anurag Jain is required
to controvert the finding given by Shri Bharat Kumar Vyas, Additional
Excise Commissioner. Non examination of Shri Anurag Jain will severely
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prejudice the defence of applicant.
3.1 It is further contended by learned senior counsel that the sole
consideration of application under Section 391 of Cr.P.C. at appellate stage
should be to meet the ends of justice and mere filing of application at belated
stage is not a sufficient ground to reject the application. In this regard, the
decision of the Hon'ble Apex Court in the case of Brigadier Sukhjeet Singh
(Retired) MVC Vs. State of Uttar Pradesh and others 2019 (16) SCC 712 is
relied upon by learned senior counsel.
4. Learned senior counsel for the respondent has submitted that the
applicant and co-accused have been convicted by the Trial Court vide
judgment 29.08.2023 for the offence under Sections 420 & 120-B of IPC and
sentenced to undergo R.I. for three years. Against the said judgment, two
appeal have been filed; one by the applicant for setting aside order of
conviction and sentence and the other by the respondent seeking
enhancement of sentence and both the appeals are pending before the
Appellate Court. It is also contended that nine contractors in connivance with
present applicant and other officers of the Excise Department have changed
the partnership deed during the tender period. For the said act, a criminal
case was registered against nine contractors on the basis of complaint
submitted by respondent and they were convicted and sentenced to undergo
R.I. for three years with fine of Rs.10,000/- vide judgment dated 29.04.2019.
Against said judgment, they have preferred a Criminal Appeal No.275/2019
before the Court of 21st Additional Sessions Judge, Bhopal.
4.1 It is also contended that respondent had filed a complaint against
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present applicant for changing partnership in the record, which was
registered as RCT. No.5442/2008 for the offence under Section 420 & 120-B
of IPC. The order taking cognizance of complaint was challenged by
applicant before Sessions Judge by preferring Criminal Revision
No.195/2008, which was also dismissed. Being aggrieved the said order, the
applicant filed a petition before this Court registered as MCRC.
No.5521/2008, which was dismissed by order dated 11.11.2008. The
applicant challenged the said order by filing Criminal Appeal No.1477/2013
before Hon'ble Apex Court, which was also dismissed vide order dated
23.09.2013. It is also submitted that while dismissing the criminal appeal,
Hon'ble Apex Court has categorically given a finding that partnership deed
dated 06.03.2003 was forged document and had been deposited in the office
of applicant on the same day. It is further submitted that thereafter the
applicant raised the issue of sanction in the Trial Court under Section 197 of
Cr.P.C., which was rejected by the Trial Court, Sessions Court as well as
Coordinate Bench of this Court in MCRC. No.12365/2015 vide order dated
17.09.2018. It is also contended that thereafter applicant challenged the order
of framing of charge by the Trial Court, which was also dismissed by
Sessions Court vide order dated 18.07.2019 passed in Criminal Revision
No.374/2019. Against this order, he filed a petition before this Court under
Section 482 of Cr.P.C. in which the applicant had filed an application before
this Court for making forged signatures of the respondent thereby seeking a
transfer of the said petition from the concerned Judge. In this regard, a
detailed enquiry was conducted pursuant to directions of this Court by
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Principal Registrar (Judicial) in which it is found that the letter dated
20.09.2019 was not written by the respondent. The applicant was convicted
by the Trial Court vide judgment dated 29.08.2023. It is further contended
that conduct of applicant has not been proper and somehow he managed to
drag the case for about 15 years by filing multiple litigations before various
forums.
4.2 It is also contended by learned senior counsel that the application
for examination of said witness was filed by the applicant during trial, which
was rejected by order dated 26.12.2022. The applicant has challenged that
order before the Sessions Court, which was also dismissed by the Sessions
Judge by order dated 08.05.2023 in Criminal Revision No.13/2023 and thus,
the order of Trial Court has been affirmed by Revisional Court. It is further
contended that the applicant had not chosen to challenge the order dated
08.05.2023 passed by Revisional Court, therefore the said order had attained
finality. Both the orders were dismissed on the ground that there is no need
for getting Shri Anurag Jain to be examined because the documents, which
the applicant desires to be produced have already been exhibited. It is also
contended that thereafter the applicant again filed a fresh application under
Section 391 of Cr.P.C. on the same set of facts to call for same witness i.e.
Shri Anurag Jain as defence witness, which has been dismissed by the
Appellate Court. It is submitted that the issue involved in this case has
already been decided by the Trial Court and the Sessions Court, which had
attained finality, therefore the Appellate Court has rightly dismissed the
petition. Learned senior counsel supported the order passed by Appellate
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Court. In support of his contention, learned senior counsel has placed
reliance on the decision of Coordinate Bench of this Court in the case of
Vikas Modi & Anr. vs. State of M.P. & Anr. passed in MCRC.
No.28967/2023.
5. Heard learned counsel for the parties and perused the record.
6. Section 391 of Cr.P.C empowers the appellate Court to see that
justice is done between both the parties and if the appellate Court finds that
certain evidence is necessary in order to enable it, give correct findings. It
would be justifiable in taking action in this section.
7. The law is well settled by a catena of judgments rendered by
Hon'ble Apex Court that power to record additional evidence under Section
391 of Cr.P.C. should only be exercised when the party making such request
was prevented from presenting the evidence in the trial despite due diligence
being 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.
8. In a recent decision in the case of Ajitsinh Chehuji Rathod vs. State
of Gujarat & Anr. reported in (2024) 4 SCC 45 3, Hon'ble Apex Court has
held that power to record additional evidence under Section 391 of Cr.P.C.
can be exercised when the party making such request was prevented from
presenting the evidence in the trial despite due diligence and that non-
recording of such evidence may lead to failure of justice.
9. During the trial, the applicant has filed an application under Section
243 and 247 of Cr.P.C. to be examined Shri Anurag Jain and other witnesses
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as a defence witness on the same set of facts and that application was
dismissed by the Trial Court by order dated 26.12.2022 (Annexure A/10).
Against the said order, the applicant has filed Criminal Revision No.13/2023,
which was dismissed on 08.05.2023 (Annexure A/11) by 12 th Additional
Sessions Judge, Bhopal. The applicant has not challenged the order of
Revisional Court, therefore the said order has attained finality. It is evident
that the applicant was having opportunity to challenge the order of
Revisional Court before higher forum, which does not seem to have availed.
It is not a case where new document has come on record, which was not
within the powers, possession or knowledge of the applicant. The applicant
was fully aware of the fact that his application was dismissed by the Trial
Court as well as Revisional Court. However, that opportunity was not availed
by the applicant.
10. So far as the reliance on the judgment of the Hon'ble Apex Court
in the case of Brigadier Sukhjeet Singh (supra) is concerned, the said case
turns on different factual back ground. In the said case a trust deed was on
record but the trial court had refused to relied on the trust deed only because
its photocopy was on record and its original was not on record. During the
appellate stage the accused persons had brought on record the certified copy
of the trust deed and that was not allowed to be taken on record. In these
circumstances, the Hon'ble Apex Court has held that the certified copy of
trust deed can be taken on record by appellate Court by exercising
jurisdiction of u/s 391 Cr.P.C. to meet ends of justice. On the other hand, in
the present case, the facts as narrated above indicate that the applicant has
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earlier filed the application on the same facts before the Trial Court, which
was dismissed by the Trial Court and the learned Revisional Court, which
attained finality.
11. Hon'ble Apex Court in the case of Zahira Habibullah Sheikh &
Anr vs State Of Gujarat & Ors 2004(4) SCC 158 has held that Section 391 of
the Code is another salutary provision which clothes the courts with the
power to effectively decide an appeal. Though Section 386 envisages the
normal and ordinary manner and method of disposal of an appeal, yet it does
not and cannot be said to exhaustively enumerate the modes by which alone
the court can deal with an appeal. Section 391 is one such exception to the
ordinary rule. For this purpose it is open to the appellate court to call for
further evidence before the appeal is disposed of. The appellate court can
direct the taking up of further evidence in support of the prosecution; a
fortiori it is open to the court to direct that the accused persons may also be
given a chance of adducing further evidence. The primary object of Section
391 is the prevention of a guilty man's escape through some careless or
ignorant proceedings before a court or vindication of an innocent person
wrongfully accused. Where the court through some carelessness or ignorance
has omitted to record the circumstances essential to elucidation of truth, the
exercise of powers under Section 391 is desirable. In the present case, the
nonavailing of the opportunity during course of trial u/s 243 and 247 Cr.P.C.
does not appear out of ignorance or carelessness of the petitioners as they
have been shown to be dilligently prosecuting their defence in the trial.
13. Hon'ble Apex Court in the case of Ajitsinh Chehuji Rathod (supra)
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has held as under:-
"17. Thus, we are of the view that if at all, the appellant was
desirous of proving that the signatures as appearing on the cheque
issued from his account were not genuine, then he could have
procured a certified copy of his specimen signatures from the
Bank and a request could have been made to summon the
concerned Bank official in defence for giving evidence regarding
the genuineness or otherwise of the signature on the cheque.
18. However, despite having opportunity, the accused appellant
did not put any question to the bank official examined in defence
for establishing his plea of purported mismatch of signature on the
cheque in question and hence, we are of the firm opinion that the
appellate Court was not required to come to the aid and assistance
of the appellant for collecting defence evidence at his behest. The
presumptions under the NI Act albeit rebuttable operate in favour
of the complainant. Hence, it is for the accused to rebut such
presumptions by leading appropriate defence evidence and the
Court cannot be expected to assist the accused to collect evidence
on his behalf."
14. Thus, in this matter, it cannot be said that the applicant had no
knowledge regarding this evidence and documents, hence, this cannot be said
to be a bonafide case in terms of Section 391 of Cr.P.C.
15. As a consequence of the aforesaid, I find no infirmity in the
impugned order warranting interference, present MCRC lacks merits and
stands dismissed.
(PRAMOD KUMAR AGRAWAL)
JUDGE
mohsin
