IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE ANIL VERMA ON THE 22^nd OF NOVEMBER, 2022 MISC. CRIMINAL CASE No. 49257 of 2021 BETWEEN:-

M/S AMICUS PHARMACEUTICALS PVT. LTD THROUGH DIRECTOR SHRI

1VIKRAMADITYA VYAS AND SMT . VANDANA VYAS A-45 RAMBALI NAGAR, INDUSTRIAL ESTATE, INDORE (MADHYA PRADESH)

VIKRAMADITYA VYAS S/O SHRI BIHARILAL JI VYAS, AGED ABOUT 40 YEARS, OCCUPATION: BUSINESS (DIRECTOR AND OFFICIAL IN CHARGE OF

2AMICUS PHARMACEUTICALS PVT. LTD.) . FLAT NO. 201, RUCHI APARTMENT, SECOND FLOOR, 8 DRAVID NAGAR, RANJIT HANUMAN MAIN ROAD IN FRONT OF APOORTI SUPER MARKET (MADHYA PRADESH)

SMT. VANDANA VYAS W/O SHRI VIKRAMADITYA, AGED ABOUT 35 YEARS, OCCUPATION: BUSINESS (DIRECTOR OF AMICUS PHARMACEUTICALS PVT. LTD.)

3 FLAT NO. 201, RUCHI APARTMENT, .

SECOND FLOOR, 8 DRAVID NAGAR, RANJIT HANUMAN MAIN ROAD IN FRONT OF APOORTI SUPER MARKET (MADHYA PRADESH)

.....PETITIONER (SHRI PRAMOD C. NAIR, LEARNED COUNSEL FOR THE PETITIONER .)

AND ANIL S/O FATEH CHANDJI CHIMNANI, AGED ABOUT 40 YEARS, OCCUPATION: BUSINESS 404 USHA NAGAR EXTENSION (MADHYA PRADESH)

.....RESPONDENTS (SHRI SUNIL KUMAR GANGWAL, LEARNED COUNSEL FOR THE RESPONDENT [R-1].)

This application coming on for order this day, the court passed the following:

ORDER

The petitioners have filed present petition under section 482 of Code of Criminal Procedure, 1973 ( in short “ Cr.P.C) against the impugned order dated 14/09/2021 passed by the Additional Sessions Judge, Indore in Criminal Appeal no. 958/2015 by the petitioners, whereby the application filed under section 391 of Cr.P.C for taking additional evidence has been rejected.

2. Brief facts of the case are that respondent /

complainant Anil Chainwani filed a complaint case under section 138 of the Negotiable Instrument Act (in short “the Act”) against the petitioner / accused person and the trial Court, after completion of the trial, passed the judgment dated 23/11/2015, whereby the petitioner/ accused persons were convicted under section 138 of the Act. Being aggrieved by the aforesaid judgment, the petitioner filed criminal appeal before the Additional Sessions Judge, Indore Before the first Appellate Court, the petitioners filed an application under section 391 of Cr.P.C by stating that as per the resolution dated 28/04/2004 passed by the Board of Directors, Ms. Vandana Vyas was permitted to withdraw routine business and transaction of the said company and Ms. Vandana Vyas also filed income tax return of the Year 2008-09 and 2009-10 by showing that her income as a salary from the company is zero. The documents regarding the resolution dated 28/04/2004 and both the income tax return of Ms. Vandana Vyas are relevant for adjudication of the matter. The petitioners handed over all these documents to their counsel, but due to oversight, their counsel could not produce the same before the trial Court, hence they be permitted to produce the aforesaid document as additional evidence.

3. The first Appellate Court, after considering all the facts and circumstances of the case and by holding that the application is not supported by affidavit, the petitioners / appellants failed to establish any bonafide reason for not filing of the aforesaid documents at the earlier stage, rejected the application. Being aggrieved by the impugned order, the petitioners have filed present petition before this Court.

4. Learned counsel for the petitioners has contended that section 391 of Cr.P.C clearly says that the appellate Court, if thinks, additional evidence is necessary, shall record the same and the necessary document may be taken on record, but the appellate Court without going into the relevancy of the documents, straightway dismissed the petition on hyper technical ground that due to non-annexure of affidavit in support of the application, it is not considered as bonafide. The trial Court has failed to appreciate that due to negligence of the counsel for the petitioners, concerned documents could not be produced at an early stage