TMI Blog2018 (10) TMI 1972X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examination of the complainant, where, he has stated that the amount was lent in the year 2012. It is the categorical case of the applicant-accused that there is categorical return of the amount by him by way of cheque and the said sum of Rs.4.09/- lakh (rounded off) with contemporaneous documents has been held by the trial Court to have been proved - The trial Court simply record the said application and vide Exhibit-43, the closure pursis of the applicant-accused is accepted, stating that he did not want to adduce any further evidence either in writing or orally. This Court notices that the respondent-accused, of course, had an opportunity to get the said documents exhibited - Matter remanded back to the trial Court concerned, which shall complete this process within a period of EIGHT WEEKS from the date of receipt of a copy of this order and once such a procedure is over, it shall send back the entire record to this Court to proceed further with the main appeal - application allowed. - CRIMINAL MISC.APPLICATION NO. 2 of 2018 IN R/CRIMINAL APPEAL NO. 1488 of 2016 - - - Dated:- 11-10-2018 - HONOURABLE MS JUSTICE SONIA GOKANI MR JAL S UNWALA, MR LUV S. SHAH, MS NIRALI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these documents were exhibited. 2.5 In the judgment delivered by the trial Court, it considered the case of the complainant of lending of Rs.20/- lakh and also proof of return of more than Rs.04/- lakh by way of cheque by the applicant-accused. Therefore, on the ground that on the date of issuance of cheque, i.e. on 17.03.2014, there did not exist legally enforceable debt of Rs.20/- lakh, the trial thereby, acquitted the applicant original accused. Hence, this application. 2.6 During the course of hearing of the present application, a request is made to exhibit the documents, which had been sought to be exhibited, i.e. the subsequent reply dated 19.05.2014 and the R.P.A.D. slip thereof, before the trial Court as additional evidence, as provided under Section 391 of the Code. 3. This Court has heard the learned Advocate, Mr. Unwala, for the applicant, who has urged that it is not for filling-up the lacunae that such an application is moved and bearing in mind the interest of justice and also considering the endorsement made by the trial Concerned and the Rojnama, this Court should allow this application and the same should not be objected to by the complainant-opponent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1 It is required to make a mention, at this stage, that the complainant-opponent No.1 in his deposition has once again stated that the amount lent was Rs.20/- lakh. It is also necessary to refer to the cross-examination of the complainant, where, he has stated that the amount was lent in the year 2012. It is the categorical case of the applicant-accused that there is categorical return of the amount by him by way of cheque and the said sum of Rs.4.09/- lakh (rounded off) with contemporaneous documents has been held by the trial Court to have been proved. It is to be noted that the applicant-accused, though, specifically produced vide Exhibits-41 and 42, the application of tendering the second reply to the demand notice dated 19.05.2014 and the R.P.A.D. slip, the trial Court had chosen to merely record this application and has not given any exhibit number to the same. Surprisingly, it has mentioned in the Rojnama of the said documents having been accepted, however, no documents have been exhibited. The original record is also examined and this Court does not find any reference of having exhibited those documents produced vide application Exhibit-42. The trial Court simply recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. 6.6 This provision, thus, authorizes the Appellate Court to take additional evidence, while dealing with any appeal if it deems additional evidence to be necessary on recording the reasons, either it may record itself or direct the Court of Magistrate Sessions Court. 465. Finding or sentence when reversible by reason of error, omission irregularity. (1) Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gold of the purity of 99.60. The request was made in order to invoke the powers of the Court under Section 391 of the Code of Criminal Procedure, 1973, which inter alia provides that in dealing with any appeal under Chapter XXIX the appeal Court. if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or ask it to be taken by a Magistrate. The High Court rejected the prayer on the ground that it did not consider it expedient in the interests of justice to open a new vista of evidence in view of the fact that the offence had taken place six years back. The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day. Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of the Mint Master had admittedly been placed on record it had not been formally proved the report completely supported the case of the prosecution that the gold was of the specified purity. To deny t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken recourse to solely because there is an error, omission or irregularity in the proceeding. The term 'a failure of justice' has been treated as the sine qua non for setting aside the conviction. The Apex Court, further, held that 'fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of 'fair trial' is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasizing the principle of 'fair trial' and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-compliance of a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. The Apex Court, further, held and observed as under: 39. The question posed by us fundamentally relates to the noncompliance of such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the respondent-accused, of course, had an opportunity to get the said documents exhibited. He had also been given the liberty to do it, after the trial Court having permitting the application for additional evidence. However, merely on permitting of the said application by the trial Court, the applicant-accused chose not to get the same exhibited and instead tendered the closing pursis. 6.13 At this stage, when the request is being made for allowing to prove the second notice dated 19.05.2014, which also confirms the figure of the prosecution of having lent the amount of Rs.20/- lakh, not accepting the same on the ground that the same is an attempt to fill-up the lacunae would be an error on the part of the Court, for the reason that an attempt had already been made on the part of the applicantaccused before the trial Court to get the same produced. It is a different that at that stage, the learned Advocate, who appeared before the trial Court, could have been more vigilant, careful and ought to have ensured that the documents are duly exhibited. However, for the error of the lawyer, the party cannot suffer, which is a trite law. And therefore, this Court is of the opinion th ..... 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