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TMI Blog2018 (10) TMI 1972X X X X Extracts X X X X X X X X Extracts X X X X ..... l Magistrate and CBI Court No.2, Ahmedabad (Rural), on the ground of dishonour of a cheque bearing No. 877828 for an amount of Rs.20/- lakh, drawn on State Bank of India, Dated: 17.03.2014, from Account No. 63023186218 and when the same came to be presented for payment on 02.04.2014, it was returned with the endorsement 'Insufficient Funds'. 2.2 The original complainant-opponent No. 1, therefore, issued a demand notice on 11.04.2014 and a reply to the same was given by the applicant-original accused 25.04.2014. 2.3 It is the specific case of the complainant-opponent No.1 that the amount of Rs.20/- lakh was to be recovered from the applicant-original accused, however, in the reply to the notice dated 25.04.2014, the applicant-original accused has stated that the amount of Rs.40/- lakh was given by the original complainant to the applicant-accused. The matter, thereafter, proceeded and the prosecution adduced evidence. Ultimately, at the fag end, an application was tendered by the applicant-accused vide Exhibit-41, whereby, the applicant had made a request for replacing the reply dated 25.04.2014 to the demand notice with the subsequent reply given to the complainant on 19.05.2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued in the year 2014 and dishonored, has not been dislodged. Therefore, there is no requirement of any endorsement as provided under Section 56 of the NI Act. He has urged that the rights of both the prosecution and of the accused, when are compared, the prosecution's right should be given primacy over the accused's right, more particularly, in the special statute of the NI Act. He has, further, pointed out that the specific case of the respondent-accused is of lending of Rs.40/- lakh when has not been proved, the an attempt is now made to bring on record that particular aspect, which will have the material bearing on the case and will greatly affect the case of the prosecution. 5. This Court has also heard the learned APP for the respondent-State. 6. Having, thus, heard the learned Advocates on both the sides, this Court notices that from the beginning the case of the original complainant in the complaint lodged under Section 138 of the NI Act is of his having lent a sum of Rs.20/- lakh to the applicant-accused. It is also his demand in the demand notice, which is a mandatory requirement prior to filing of the complaint under Section 138 of the NI Act, that the amount of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his Closing Pursis. 6.3 This additional reply, is the specific defence of the accused-applicant, wherein, an attempt is made to rebut the positive evidence of the transaction of paying of the amount to the accused-applicant. The trial Court has recorded the said aspect, while adjudicating the disputes between the parties and while appreciating the evidence, both oral as well as the documentary. This aspect is being highlighted by the complainant-opponent No.1 in the appeal. 6.4 In this backdrop of facts, a request being made to this Court to consider the adducement of the additional evidence, as provided under Section 391 and 465 of the Code, deserves consideration. 6.5 Apt it would be to reproduce, both the provisions Section 391 and 465 of the Code, which read thus: "391. Appellate Court may take further evidence or direct it to be taken. (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibited. Therefore, the only question that is required to be considered by this Court as held in 'RAJESWAR PRASAD MISRA' (Supra) as to whether, the requirement of justice would dictate this to be allowed. 6.9 Yet, another decision relied upon is of 'STATE OF GUJARAT Vs. MOHANLAL JITAMALJI PORWAL AND ANOTHER' (Supra), the additional evidence was sought to be produced before the High Court to remove the technical or formal defect. While the report of the Mint Master that article seized was made of pure gold was already placed on record, additional evidence sought to prove the report, where, the High Court had refused to adduced the additional evidence merely on the ground of lapse of six years and the Apex Court held and observed that the same was the error on the part of the High Court. The Apex Court, further, held that to deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. 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, where delays in the Court have become very common. The rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest. The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the Code of Criminal Procedure. We are of the opinion that the application should have, been granted in the facts and circumstances of the case with the end in view to do full and true justice. The application made by the learned Assistant Public Prosecutor is therefore granted. The High Court will issue appropriate directions for the recording of the evidence to prove the report of the Mint Master under Section 391, Cr. P.C. when the matter goes back to the High Court and is listed for directions. The appeal is therefore allowed. The order of acquittal is set aside. The matter is remitted to the High Court for proceeding further in accordance with law in the light of the above said directions." 6.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, we may fruitfully reproduce the observations from Sidhartha Vashisht v. State (NCT of Delhi), wherein, it has been so stated:- "In the Indian Criminal Jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India." 6.11 The Apex Court also hold that merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding, unless the Court records the sat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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