Punjab-Haryana High Court
M/S Klmn Enterprises vs M/S Roshan Agro Steel Mills And Anr on 18 March, 2024
Neutral Citation No:=2024:PHHC:039911
2024:PHHC:039911
CRM-A-1429-MA-2017(O&M) and 5 connected cases 1
104+219 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1. CRM-A-1429-MA-2017(O&M)
Date of decision:18.03.2024
M/s KLMN Enterprises
...Applicant-Appellant
Versus
M/s Roshan Agro Steel Mills and another
...Respondents
2. CRM-A-1433-MA-2017 (O&M)
Date of decision:18.03.2024
M/s KLMN Enterprises
...Applicant-Appellant
Versus
M/s Roshan Agro Steel Mills and another
...Respondents
3. CRM-A-1450-MA-2017(O&M)
Date of decision:18.03.2024
M/s KLMN Enterprises
...Applicant-Appellant
Versus
M/s Roshan Agro Steel Mills and another
...Respondents
4. CRM-A-1469-MA-2017(O&M)
Date of decision:18.03.2024
M/s KLMN Enterprises
...Applicant-Appellant
Versus
M/s Roshan Agro Steel Mills and another
...Respondents
5. CRM-A-1482-MA-2017(O&M)
Date of decision:18.03.2024
M/s KLMN Enterprises
...Applicant-Appellant
Versus
M/s Roshan Agro Steel Mills and another
...Respondents
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CRM-A-1429-MA-2017(O&M) and 5 connected cases 2
6. CRM-A-1582-MA-2017 (O&M)
Date of decision:18.03.2024
M/s KLMN Enterprises
...Applicant-Appellant
Versus
M/s Roshan Agro Steel Mills and another
...Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Dhirinder Chopra, Advocate
for the applicant-appellant(s)
***
Harpreet Singh Brar, J. (Oral)
CRM-311325-2018 in CRM-A-1429-MA-2017, CRM-31062-2023 in CRM-A-
1433-MA-2017, CRM-31137-2023 in CRM-A-1450-MA-2017, CRM-30802-
2023 in CRM-30802-2023 in CRM-A-1469-MA-2017, CRM-30848-2023in
CRM-A-1482-MA-2017 and CRM-31074-2023 in CRM-A-1582-MA-2017
These are the applications under Section 391 of the Cr.P.C. for
leading additional evidence in the form Annexures A-11 to A-15.
Learned counsel for the applicant contends that the learned Judicial
Magistrate First Class, Jalandhar acquitted the respondents vide judgment dated
21.04.2017 primarily on the ground that the appellant has failed to prove the
business dealings between the parties. The applicant-appellant has also filed a
Civil Suit No. 1234/14 titled 'M/s KLMN Enterprises v. M/s Roshan Agro Steel
Mills and another' for recovery of Rs. 15,89,977.40 from the respondents along
with interest wherein Narinder, Tax Assistant, Officer of Principal Commissioner
of Income Tax, Jalandhar appeared as PW5 and proved Annexures A-12 to A-15.
Amongst these documents is Annexure of Sundry Creditors as on
31.03.2014(Annexure A-13) submitted by respondent no. 2-Balram Gupta
wherein Rs. 14,03,476.40/- has been shown as due towards the applicant. He
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further submits that the applicant was not aware of the existence of these
documents during the trial and has procured copies of the same from the Court of
Civil Judge (Senior Division), Jalandhar. Since these documents (Annexure A-12
to A-15) are essential for just adjudication of the present application-appeal,
learned counsel prays for them to be read into evidence.
This Court has heard the learned counsel for the applicant and
perused the record, however, remains unsatisfied as to why the additional
evidence being sought to be introduced at this stage could not have been led at the
appropriate stage during trial. The applicant cannot be allowed to take shelter of
Section 391 Cr.P.C. for its lack of due diligence.
Recently, two Judge bench of the Hon'ble Supreme Court in Ajitsinh
Chehuji Rathod v. State of Gujrat and another Criminal Appeal @SLP(Crl.)
No.16641 of 2023 decided on 29.01.2024, speaking through Justice Sandeep
Mehta, has held as follows:
"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 nonrecording of such evidence may
lead to failure of justice."
The complaint in the instant case was instituted in the year 2014. The
documents being sought to be introduced as additional evidence came to the
knowledge of the applicant after they were introduced in the civil suit for
recovery, also instituted in the year 2014. Therefore, the documents were
available but it was for the lack of due dilligence on the part of the applicant that
they were not introduced during the trial.
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The Himachal Pradesh High Court in Kewal Krishan v. State of H.P.
and another 2023(2) Cri.CC 455, speaking through Justice J.R. Dua has opined
as follows:
"4(ii) In (2019) 16 SCC 712 [Brigadier Sukhjeet Singh (Retired)
MVC v. State of Uttar Pradesh & Ors], the Hon'ble Apex Court held
that the key words in Section 391(1) are "if it thinks additional
evidence to be necessary". The word "necessary" used in Section
391(1) is to mean necessary for deciding the appeal. Power to take
additional evidence under Section 391 Cr.P.C. is with the object of
appropriate decision of the appeal by the appellate Court to secure
ends of justice. The Hon'ble Apex Court noted the decision rendered
in (2001) 4 SCC 759 (Rambhau v. State of Maharashtra), wherein a
word of caution was introduced for guidance "that additional
evidence cannot and ought not to be received in such a way so as to
cause any prejudice to the accused. It is not a disguise for a re-trial
or to change the nature of the case against the accused. The order
for adducing additional evidence must not ordinarily be made, if the
prosecution has had a fair opportunity and has not availed of it. It
was further held that there is no fetter on the power under Section
391 Cr.P.C of the Appellate Court. All powers are conferred on the
Court to secure the ends of justice. While allowing the application
moved under Section 391 Cr.P.C. by the accused in that case,
Hon'ble Apex Court further held that it depends on facts of each and
every case to come to a conclusion as to whether it is necessary to
take additional evidence or not." (emphasis added)
Further, the Himachal Pradesh High Court in Jagdeep Kumar v.
Himachal Pradesh State Co-operative Bank Limited 2019 (3) SLC 1354,
speaking through Justice Vikas Singh Thakur, has observed as follows:
"14. From the provisions of Section 391 Cr.P.C., 1973 and ratio of
law laid down by the Apex Court, it emerges that Section 391(1)
Cr.P.C., 1973 empowers the Appellate Court, dealing with any
appeal under Chapter XXIX of Cr.P.C. either to take evidence itself
or direct it to be taken by the Courts subordinate to it, but after
recording the reasons, if it thinks that additional evidence is
necessary. Undoubtedly, the Courts are there for dispensation of
justice and necessary reasons for taking additional evidence at
appellate stage must be in the interest of justice and for a just and
proper decision of the Appellate Court, as not only the primary, but
sole purpose of judicial machinery, is to impart justice. Therefore,
provisions of this Section should be invoked only for the ends of
justice and not for any other reason. This Section is also not intended
to remedy the negligence or laches of the party. It is also settled that
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though power is unfettered, but the recourse to exercise of these
powers are not to be made ordinarily in a situation where either of
the parties did not avail the opportunity to adduce evidence and
accused should not be allowed to adduce the defence evidence at
appellate stage, where he has failed to adduce the evidence despite
granting of several opportunities. Appellate Court should not admit
additional evidence where the party had opportunity to file the same
before the trial Court, unless the requirement of justice dictates
otherwise." (emphasis added)
In view of the discussion above, this Court sees no merit in the
present application and the same stands dismissed.
CRM-A-1429-MA-2017 and 5 connected cases
1. This common order shall dispose of all six of the above-mentioned
cases as they arise from the similar factual matrix. However, for the sake of
brevity, facts are culled out from CRM-A-1429-MA-2017.
2. The present application under Section 378(4) Cr.P.C. has been
preferred against the judgment of acquittal dated 21.04.2017 passed by learned
Judicial Magistrate Ist Class, Jalandhar in criminal complaint no.
NACT/1040/2014 dated 21. 04.2017 filed under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter 'NI Act').
3. Briefly, the facts are that the applicant-appellant has been in business
with respondent no.1- M/s Roshan Agro Steel Mills since many years.
Respondent no. 2 is the proprietor of the respondent-firm and is also responsible
for its day to day affairs. In the course of business, an outstanding amount of Rs.
14,03,207.40/- was payable to the applicant-appellant by the respondent firm. In
discharge of its liability, a cheque bearing no. 269855 dated 30.12.2013 for Rs.
2,15,000/- was issued by respondents-accused on behalf of the firm. On
presentation of encashment, the same was dishonoured vide memo dated
03.03.2014 with the remarks - 'insufficient funds.' Thereafter, a legal notice dated
10.03.2014 was served upon the respondents-accused calling upon them to make
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the payment. However, the respondent-accused failed to pay the remaining
amount in the stipulated time and the instant complaint was instituted.
4. Having heard the learned counsel for the applicant-appellant and
after perusing the record of the case with his able assistance, it transpires that the
signature on the disputed cheque have been duly admitted by the accused.
However, the accused has stated that the disputed cheque was issued as security
during business transaction. The petitioner-complainant had relied on copy of the
account (Ex. C1) and ledger account (Ex. C2) to contend that Rs. 11,15,287/- was
due against the respondents-accused, however, these documents were photocopies
and permission to lead secondary evidence was not obtained. CW1-Mandip
Nanda has taken a specific stand that the regular books are not maintained by him
and that Rajesh Aggarwal, C.A. was responsible for auditing the same. He has
categorically admitted that the ledger account was not audited by him. The
petitioner-complainant has not been able to explain why the ledger account put on
record was not duly maintained or audited. In fact, Ex. C2 is a batch of three
loose papers with entries pertaining to respondent no.1.
5. In his cross-examination, the petitioner-complainant has admitted
that the disputed cheque was not issued against the bill dated 25.06.2013.
Therefore, it is clear that the cheque was issued against the running account and
not against a specific bill. The petitioner-complainant has tried to salvage the
situation by claiming that the disputed cheque was issued in lieu of another
dishonoured cheque, however, it was in vain as no pleadings are proved against
the alleged previously dishonoured cheque. CW3-Vikas Kumar, Tax Assistant has
produced on record the documents pertaining to respondent no. 2 and in his cross-
examination, he has stated that the returns from 2012 onwards, produced by him
do not concern respondent no. 1-firm but respondent no. 2. Moreover, the legal
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notice with regards to the disputed cheque fails to mention the details of the bill
or the goods supplied against which the cheque was allegedly issued.
Furthermore, in his cross-examination, the complainant could not even state the
date, month and year of the cheque issued to him for clearance of dues. He also
failed to state when was the last time he sold goods to the respondents-accused.
Therefore, the presumption under Section 139 of the NI Act stands successfully
rebutted.
6. The power of the Appellate Court to unsettle the order of acquittal on
the basis of re-appreciation of the evidence is subject to the settled law that where
two views are possible and out of the two, one points towards the innocence of
the accused, the view which favours the accused should prevail over the other
pointing towards his guilt. Furthermore, the trial Court has the additional
advantage of closely observing the prosecution witnesses and their demeanour,
while deciding about the reliability of the version of prosecution witnesses. (See
H.D. Sundara and others Vs. State of Karnataka, Criminal Appeal No.247 of
2011 decided on 26.09.2023; Kali Ram v. State of H.P., 1973 (2) SCC 808 and
Chandrappa and others v. State of Karnataka, (2007) 4 SCC 415). A Division
bench of this Court in the judgment passed in State of Haryana Vs. Ankit and
others passed CRM-A No.3 of 2022 decided on 06.07.2023 has held that
presumption of innocence further gets entrenched on the acquittal of accused by
the trial Court.
7. In view of the facts and circumstances of the case, this Court finds
that learned counsel for the applicant-appellant has failed to point out any
perversity or illegality in findings recorded by the learned trial Court which
warrants interference by this Court. As such, there is no merit in the present
application and hence, the leave to appeal is denied.
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8. Accordingly, all the above mentioned applications are disposed of in
the aforementioned terms. Pending miscellaneous applications shall also stand
disposed of.
(HARPREET SINGH BRAR)
JUDGE
18.03.2024
Ajay Goswami
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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