ORDER :

Gita Gopi, J.

1. Though the complainant-company being common in both the matters and the issues raised are similar, both the applications are disposed of by this common order.

1.1 Learned Advocate Mr. Tanmay Karia for the original complainant-petitioner submitted that the petitioners as original complainant had filed an application before the learned 9^th Additional Sessions Judge, Ahmedabad (Rural) to permit them to produce certificate under Section 65B of the Indian Evidence Act (for short, ‘the Evidence Act’), 1872, which is Section 63(4)(c) of Bharatiya Sakshya Adhiniyam, 2023 (for short, ‘BSA’ Act).

2. Advocate Mr. Karia submitted that during the course of trial, the extracts of the ledger account were produced before the trail Court which was at Exh.10 and 11 and the same were not disputed and that no objection was raised by the accused for any certificate under Section 65B of the Evidence Act, and stated that during the course of the appeal in the written argument, the issued was raised about the certificate under Section 65B of the Evidence Act and therefore, the complainant had moved the Court under Section 391 of the Criminal Procedure Code (for short, ‘Cr.PC’) to permit him to file necessary certificate.

3. Advocate Mr. Karia submitted that the application was resisted by the accused and the learned trial Court Judge, while rejecting the applications noted that the ample opportunity was available to the complainant to lead his evidence in accordance to law and had an opportunity to produce certificate under Section 65B of the Evidence Act, but failed to do so. Advocate Mr. Karia submitted that the impugned orders were erroneous, so prayed to allow the petitions.

4. Learned trial Court Judge had noted that it was not the case of the complainant that though due diligence was exercised, the certificate could not be produced and therefore, the learned trial Court Judge was of the opinion that the conduct of the complainant shows that the complainant had tried to fill up the lacuna at the appellate stage, which is not permissible in the eyes of law. The learned Judge has also referred to the judgment of the Hon’ble Supreme Court in the case of Ajitsinh Chehuji Rathod vs. State of Gujarat, 2024(4) SCC 453, where the observation of paras 9 and 11 has been noted by the learned Judge, which is reproduced here-in-below:

“9. At the outset, we may note that that law is well- settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 Cr.PC 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.

11. In Beer Singh vs. State AIR 1978 SC 59, it has been observed that additional evidence cannot be taken to bridge the gap. The observation of the Hon’ble Apex Court is under the power of appellate Court to take additional evidence has to be exercised very sparingly. The additional evidence must be necessary not because it would be impossible to pronounce the judgment, but because there would be failure of justice without it.”

5. The learned Judge thus, placing reliance on the ratio of the referred judgment, having concluded that the complaint was filed in the year 2018 and matter was decided by the trial Court in 2024 and thereafter, the present appeal was filed in the year 2024, the complainant had ample opportunity to lead his evidence before the learned trial Court, but the application has been moved at the fake end of the appeal, especially when the arguments were pertaining to non-production under Section 65B of the Evidence Act and thus, the learned trial Court Judge was of opinion that under such circumstances, the application was not maintainable.

6. Advocate Mr. Karia could impress upon this Court by refe