#procuringevidence

[seemabhatnagar]

Proactive evidence gathering is the responsibility of the litigant

Ajitsinh Chehuji Rathore v. State of Gujrat and Another

SLP Crl. 16641/2023

Before Supreme Court of India

The Criminal Appeal was dismissed by the Division Bench of the Apex Court comprising Hon’ble Mr. Justice B R Gavai J & Hon’ble Mr. Justice Sandeep Mehta J on 29.01.2024

The present Criminal Appeal is filed against the rejection order of the Gujrat High Court where by the Criminal Misc. Case filed u/s 482 Cr P C by the Appellant Ajitsinh Chehuji Read With Section 391 Cr P C was rejected.

Facts

The present appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act.

It was alleged by the Complainant Shri Mahadevsinh Cahndaasinh Champavat before the Trial Court that the cheque for an amount of Rs.10 lakhs which was issued by the appellant in his favour upon being presented in the bank was dishonoured “for insufficient funds and account dormant.

During the course of trial, the appellant preferred an application before the Trial Court praying to send the cheque to the handwriting expert for comparison of the handwriting as well as signature appearing thereon with a plea that his signatures had been forged on the cheque in question.

The Trial Court rejected his application observing that the application is aimed at delaying the trial. The Trial Court also observed that the matter is at the stage of defense and the accused could lead evidence to prove his claim pertaining to mismatch of signatures.

The order of the Trial Court dt. 13.07.2019 was not challenged by the appellant as such it attained finality on 07.11.2019

The appellant subsequently preferred an appeal before the Principal Sessions Judge, Gandhinagar and during pendency thereof, he also filed an application under Section 391 CrPC for taking additional evidence at appellate stage and seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque.

Appellant also prayed for summoning the concerned officer from the Post Office to prove the defense theory that the notice under Section 138 of NI Act was never received by the accused appellant.

This application of the appellant was rejected by the Principal Sessions Judge, Gandhinagar vide order dt. 25.07.2023.

Against the rejection of his application by the Principal Sessions Judge Gandhinagar, Appellant invoked extra ordinary jurisdiction of the Gujrat High Court u/s 482 Cr P C.

Gujrat High Court dismissed his application vide order dated 25.10.2023.

Against the rejection of Petition u/s 482 Cr P C present SLP/Criminal Appeal is filed.

Observation of the Apex Court

Settled Law –

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.

The Apex Court observed that the Principal Sessions Judge, Gandhinagar had taken note of the fact that during the trial, the appellant examined the witness of the Bank of Baroda in support of his defense but not a single question was put to the said witness regarding genuineness or otherwise of the signatures as appearing on the cheque in question.

Cheque return memo of the Bank dat.26.02.2018 clearly recorded the reason for the cheque being returned unpaid “funds insufficient and account dormant.”

The cheque was not returned unpaid for the reason that the signature thereupon differed from the specimen signature recorded with the bank.

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 defense for giving evidence regarding the genuineness or otherwise of the signature on the cheque.

The appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest.

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.

Appellant ought to have challenged the order of rejection of his application seeking comparison of the signature as appearing on the cheque through the handwriting expert.

The order attained finality as it was not challenged.