TMI Blog2023 (10) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... minal appeal. The petitioner remained silent for three years for moving such application even in the proceedings of the criminal appeal. Thus, it appears that the petitioner was thoroughly careless and negligent and now, under the pretext of one or another application, is trying to prolong the proceedings of the criminal appeal. Reply to statutory notice u/s 138(B) of the NI Act is first stage of prosecution where the accused can raise his defence. In the present case, learned advocate for the petitioner has failed to point out that the accused has raised defence at the relevant point of time when the opportunity was available and disputed that he has not signed the cheque. Thus, no case is made out to interfere with the impugned order under supervisory jurisdiction. Hence, present petition fails and stands dismissed. - HONOURABLE MR. JUSTICE J. C. DOSHI MR SHAUNAK R DAVE(5487) for the petitioner(s) No. 1 MR KM ANTANI, Addl. PUBLIC PROSECUTOR for the Respondent(s) No. 1 ORAL ORDER 1. By way of this petition filed u/s 482 r/w section 391 of the Code of Criminal Procedure, 1973, the petitioner prays to quash and set aside the order dated 25.7.2023 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and learned APP Mr. Antani for the respondent State. 4. Learned advocate Mr. Dave for the petitioner would submit that the learned Session Judge has committed gross error in dismissing the application. He would further submit that in order to secure the ends of justice, it is necessary to allow the application filed by the petitioner for additional evidence. He would further submit that the petitioner has contended specific plea that the disputed cheque does not bear the signature of the petitioner and it goes to the root of the case, as the case was filed for the offence punishable u/s 138 of the NI Act. He would further submit that if it is proved that the disputed cheque does not bear the signature of the petitioner, no specific contention can be made for the offence punishable u/s 138 of the NI Act. 4.1 Referring to the judgment in case of Brigadier Sukhjeet Singh (Retired) MVC Vs. State of Uttar Pradesh and others reported in (2019) 16 SCC 712, he would submit that the aim of the appellate Court should be to reach truth and justice and the accused has right to take all steps and benefits of powers of the appellate Court including filing of additional evidence, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afterthought on the part of the petitioner to prolong the proceedings of the appeal. The relevant findings of the learned Session Judge are in para 6 to 8, they read as under:- 6. On perusal of the record and proceedings, it transpires that appellant-accused during the trial before the learned Trial Court filed an application vide Exh. 38 stating that the signature on the disputed cheque Exh. 10 is his duplicate signature not done by him and therefore for sending the disputed cheque Exh. 10 and specimen signature of appellant-accused for the opinion of handwriting expert in FSL. The said application Exh. 38 was rejected by the learned Trial Court on 13.06.2019 observing that the matter was posted for the evidence of accused from 16.10.2018 and accused has filed application Exh. 38 to delay the trial of the case and the additional evidence sought by the accused would not be helpful for the accused. It is pertinent to note that appellant-accused has not challenged the said order below Exh. 38 dated 13.06.2019 by way revision application before the Appellate Court, Moreover, the appellant-accused in the present application filed before this Court has not averred any reason for no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 2120; Anil Sharma Ors. vState of Jharkhand, AIR 2004 SC 2294; Zahira Habibulla H. Sheikh Anr. v. State of Gujarat Ors., (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma vState (NCT of Delhi), AIR 2010 SC 2352). (emphasis supplied) 8. A profitable reference can be made to the judgement of Honourable Supreme Court in the case of Brig. Sukhjeet Singh (Retd), Mvc V The State of Uttar Pradesh, Criminal Appeal No.148 of 2019 decided on 25th January, 2019, wherein the Honourable Supreme Court has rejected the findings given by the High Court while upholding decision of the Appellate Court in dismissing application under section 391 of the Code that the present exercise initiated by the petitioner for filing additional evidence at such a belated stage appears to be with some ulterior malafide motive or delaying the decision of the appeal to eternity. It was observed this court has laid down that when it becomes necessary to take additional evidence, cannot be enlisted or enumerated in any fixed formula and 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. 9. The legislative intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disputed cheque. Thus, what appears that the petitioner by way of filing application Exh.35 aimed to prolong the proceedings of the criminal appeal. The petitioner remained silent for three years for moving such application even in the proceedings of the criminal appeal. Thus, it appears that the petitioner was thoroughly careless and negligent and now, under the pretext of one or another application, is trying to prolong the proceedings of the criminal appeal. Important to note that the learned appellate Court has not opined that the additional evidence is necessary and essential for elucidation of truth or necessary for pronouncement of the judgment. It is equally important that the petitioner has not put his case that he has given reply to the statutory notice issued by the complainant and denied his signature upon the disputed cheque. Reply to statutory notice u/s 138(B) of the NI Act is first stage of prosecution where the accused can raise his defence. In the present case, learned advocate for the petitioner has failed to point out that the accused has raised defence at the relevant point of time when the opportunity was available and disputed that he has not signed the che ..... X X X X Extracts X X X X X X X X Extracts X X X X
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