Punjab-Haryana High Court
Vinay Kumta vs M/S Kanha Jewellers on 5 November, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2024:PHHC:147426
CRM-M No.54524 of 2024 -1-
115 THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.54524 of 2024
Date of Decision: 05.11.2024
Vinay Kumta ..... Petitioner
Versus
M/s Kanha Jewellers, Gurugram ..... Respondent
CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ
***
Present: Mr. Kamal Chaudhary, Advocate
for the petitioner.
***
RAJESH BHARDWAJ, J. (ORAL)
1. Present petition has been filed praying for quashing of order
dated 08.10.2024 (Annexure P-5) whereby the application under Section
391 Cr.P.C. for leading additional evidence in Criminal Appeal No.CRA-
527-2019 was rejected without looking into the merits of the application.
Further prayer has been made for staying all consequent proceedings qua
the petitioner during the pendency of the present petition.
2. It has been submitted by learned counsel for the petitioner
that the petitioner has been prosecuted by the complainant-respondent by
filing the complaint under Section 138 & 142 of Negotiable Instruments
Act and 420 of IPC. He has submitted that during the trial, the learned
trial Court allowed the complaint and the petitioner was convicted vide
order dated 01.10.2019 by the learned Judicial Magistrate Ist Class,
Gurugram wherein the petitioner was sentenced for rigorous
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imprisonment of 01 year and was also directed to pay the compensation
to the tune of Rs.18,00,000/-. Being aggrieved, the petitioner filed an
appeal against the judgment of conviction dated 01.10.2019 before the
learned Sessions Judge Gurugram, which is pending adjudication. He has
submitted that during the pendency of the appeal, the petitioner filed an
application under Section 391 Cr.P.C. for adducing the additional
evidence on inquiry by stating that the respondent had filed the criminal
complaint under Section 138 of Negotiable Instruments Act on the basis
of the alleged cheque bearing No.166045 dated 12.05.2016 whereas
cheque Nos.166046 & 166047 including cheque No.166045 which are of
the same series were given to Surender Sethi on 10.11.2014 as shown in
the agreement of mortgage. He has submitted that while cross examining
the respondent, namely, Nikhil Garg, the petitioner had put specific name
of Surender Sethi with whom the respondent had colluded and filed the
false and frivolous complaint. However the respondent had totally denied
that he knew Surender Sethi, who lived in Gurugram. He has submitted
that as per the provisions of Section 391 Cr.P.C., the application filed by
the petitioner for adducing the additional evidence should have been
allowed, however the same has been illegally declined by the learned
Appellate Court. He has submitted that the respondent and Surender
Sethi very well knew each other but the same has been denied by the
respondent during his cross examination. Thus, he submits that
summoning of additional evidence as prayed by the petitioner is
necessary for just decision of the case but the learned Appellate Court has
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failed to appreciate the same and thus has illegally declined the
application filed by the petitioner. He has thus submitted that the
impugned order being totally unsustainable in the eyes of law, deserves to
be set aside.
3. Heard.
4. On hearing learned counsel for the petitioner and perusing
the record, it is apparent that the petitioner has been prosecuted by the
respondent in the complaint filed under Section 138/142 of Negotiable
Instruments Act and he was convicted by the trial Court vide order dated
01.10.2019 which has been assailed by the petitioner by filing the appeal
before the Appellate Court. During the appeal, the petitioner has filed the
application under Section 391 Cr.P.C. for summoning of Mr. Sunny Ta
nwar, Advocate, District Court, Gurugram, who allegedly took
photographs and made videography of complainant Nikhil Garg and
Surender Sethi when they were present in the chamber of Mr. Subhash
Grover, Advocate and were talking to each other and thereafter they were
seen leaving the District Court premises on Activa bearing registration
No.HR26DJ-1031 owned by Surender Sethi. Further prayer has been
made by the petitioner for summoning of a witness from the office of
registration authority to prove ownership of said scooter and to establish
the fact that Mr. Nikhil Garg and Surender Sethi were familiar and
knowing each other and were in good relation and in order to implicate
the present petitioner in a false case, they colluded with each other. As
evident from the record, the complainant had explained the fact that his
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counsel as well as counsel for Surender Sethi was the same and both had
filed the cases against the petitioner which had been prosecuted through
the same lawyer.
5. For invoking the power under Section 391 Cr.P.C., the Court
has to examine whether the evidence sought to be produced was available
with the party at the time of leading his evidence. The Court also has to
examine whether the application for leading evidence sought to be
produced has been filed only in order to delay the proceedings. The
evidence sought to be produced should be essential for just decision of
the case. The case in hand pertains to the prosecution of petitioner in the
complaint filed under Section 138/142 of Negotiable Instruments Act.
The evidence sought to be produced by the petitioner does not effect the
merits of the case.
6. The petitioner has not mentioned as to when the additional
evidence sought to be produced before the Appellate Court came to his
notice and what prevented him from producing the same before the trial
Court at an earlier stage.
7. Hon'ble the Supreme Court in "Rambhau vs. State of
Maharashtra", 2001(2) RCR (Criminal) 721 has held as under:
" xxxxx
Para 4: Incidentally, Section 391 forms an exception to the
general rule that an Appeal must be decided on the
evidence which was before the Trial Court and the powers
being an exception shall always have to be exercised with
caution and circumspection so as to meet the ends of
justice. Be it noted further that the doctrine of finality of
judicial proceedings does not stand annulled or affected in
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any way by reason of exercise of power under Section 391
since the same avoids a de novo trial. It is not to fill up the
lacuna but to sub-serve the ends of justice. Needless to
record that on an analysis of the Civil Procedure Code,
Section 391 is thus akin to Order 41 Rule 27 of the C.P.
Code."
8. Recently in the judgment of "Ajitsin Chehuji Rathod vs.
State of Gujarat and another", 2024(1) RCR (Criminal) 804, the
Hon'ble Supreme Court has held as under:
" xxxxx
Para 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
Cr.P.C., 1973 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."
9. Thus at this stage, leading the additional evidence do not
meet the essential ingredients for invoking the power under Section 391
Cr.P.C.
10. Thus this Court does not find any infirmity in the view taken
by the learned Appellate Court and hence, finding no merit in the present
petition, the same is hereby dismissed.
05.11.2024 (RAJESH BHARDWAJ)
rittu JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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