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B. R. GAVAI, SANDEEP MEHTA
Ajitsinh Chehuji Rathod – Appellant
Versus
State Of Gujarat – Respondent
Certainly. Based on the provided legal document, the key points are as follows:
The power to record additional evidence under Section 391 of the Criminal Procedure Code (Cr.P.C.) should only be exercised when it is in the interest of justice. This power is to be used when a party was prevented from presenting evidence despite due diligence or when new facts emerge during the pendency of an appeal that could lead to a failure of justice if not considered (!) .
The court is not obliged to assist the appellant in collecting defense evidence. It is the responsibility of the party to lead relevant evidence, and courts are not required to aid in gathering such evidence on behalf of the appellant (!) (!) .
In cases involving dishonour of a cheque under the Negotiable Instruments Act, the presumption of genuineness of endorsements on the cheque operates in favor of the holder in due course. To rebut this presumption, the accused must lead evidence, such as obtaining certified copies of specimen signatures from the bank and summoning bank officials for examination (!) (!) .
Certified copies of bank documents are admissible under the Bankers’ Books Evidence Act without formal proof, and such documents can be used to compare signatures to establish authenticity or forgery (!) .
The accused had an opportunity to prove that signatures on the cheque were forged by procuring specimen signatures from the bank and summoning bank officials. However, failure to do so means that the presumption of validity remains intact, and the court is not required to assist in collecting such defense evidence (!) (!) .
The order rejecting the application to send the cheque for handwriting comparison was not challenged and has attained finality. The appellate court's role is to evaluate the evidence on record, including issues like receipt of statutory notices, without the need for further evidence collection through powers under Section 391 Cr.P.C. (!) (!) .
Overall, the courts emphasized that the appellant did not demonstrate that he was prevented from presenting evidence despite due diligence, and the existing evidence supports the conclusion that the presumption of the cheque’s genuineness remains valid. Therefore, the impugned orders were upheld, and the appeal was dismissed (!) .
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JUDGMENT :
Mehta, J.
1. Leave granted.
2. The instant appeal by special leave filed at the behest of the appellant accused calls into question the order dated 25th October, 2023 passed by the High Court of Gujarat rejecting the Criminal Misc. Application No. 17933 of 2023 preferred by the appellant under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’).
3. The appellant was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(hereinafter being referred to as ‘NI Act’) before the learned trial Court with an allegation that the cheque to the tune of Rs. 10 lakhs issued by the appellant in favour of the complainant Shri Mahadevsinh Cahndaasinh Champavat upon being presented in the bank was dishonoured “for insufficient funds and account dormant”.
4. During the course of trial, the appellant preferred an application dated 13th June, 2019 before learned trial Court with a prayer 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 learned tria
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