Dismissed

Sanjay Yashwant Kandpile v. the State of Maharashtra and Anr.

Bombay HC19 Oct 2023WP/607/2020

Case brief

AI extract

What is this about?

The High Court dismissed a criminal writ petition challenging an order rejecting an application for additional evidence under Section 391 CrPC in a conviction under Section 138 NI Act. The Court held that the rejection was proper as the trial court had compared signatures and the record showed supporting evidence.

What did the court decide?

The writ petition challenging the rejection of the application for additional evidence under Section 391 CrPC was dismissed.

Sanjay Yashwant Kandpile Vs the State of Maharashtra and Anr. — Cheque Dishonour | Bombay HC (2023)

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Chitra Sonawane. WP-607-2020.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.607 OF 2020

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Mr. Sanjay Yashwant Kandpile Age 49 years, Occ : Business, Residing at 5/10, Plot No.22, Shree CHSL, Sector no.3E, Kalboli Taluka Panvel, New Mumbai 410218.

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…. Petitioner (Orig.Accused)

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Vs.

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The State of Maharashtra

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Digitally signed by CHITRA 2. Mr Vinod S. Shandilya CHITRA SANJAY SONAWANE SANJAY Date: Age 40 years, Occ: Business, SONAWANE 2023.10.19 14:21:04 Plot no.115, RSC no.6, +0530 Gorai-I, Borivali (W), Mumbai 400 091. & also at 39, Cijay Bldg, Andheri Kurla Road, Andheri (E), Mumbai 72. ….. Respondents.

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….. Respondents.

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Ms Divya Parmar, Advocate for petitioner. Mr AR Kapadnis, APP for State/respondent no.1. Mr V.S.Tiwari, Advocate a/w Ms Priya Muthupandi i/b Ms Priti V. Tiwari for respondent No.2.

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Page No. 1 of 7

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____________________________________________ 19 October 2023

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Chitra Sonawane. WP-607-2020.doc

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Coram: R.N.Laddha, J. Date : 19.10.2023.

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P.C.:

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Rule. The Rule is made returnable forthwith. Heard
finally at the request and with the consent of the learned
Counsel for the parties.

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2.The legality, propriety and correctness of the Order
dated 3.12.2019 passed below Exh.8 by the Additional
Sessions Judge, Dindoshi, Mumbai, in Criminal Appeal No.64
of 2016, is assailed in this petition. The learned Additional
Sessions Judge, by this order, rejected the application Exh.8
filed by the petitioner under Section 391 of the Code of
Criminal Procedure, 1973.

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3.The petitioner is an accused in a criminal case bearing
CC No.4301895/SS/2008 instituted by respondent No.2/
complainant under Section 138 of the Negotiable Instruments
Act, 1881. The accused and the complainant/ respondent
No.2 were having friendly relations. The accused was having
a petrol pump. He approached the complainant for a friendly
loan of Rs.10,00,000/- for business purposes. Accordingly,
respondent No.2 advanced a loan of Rs.10,00,000/- to the
accused.

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Page No. 2 of 7

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19 October 2023

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Chitra Sonawane. WP-607-2020.doc

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4.It is the case of the complainant that the accused
executed declaration-cum-undertaking on 12.3.2008 in his
favour and, to discharge his liability, issued a post-dated
cheque bearing No.332204 dated 30.3.2008 for a sum of
Rs.10,00,000/-. However, when the cheque was presented for
encashment, it was dishonoured. Therefore, after completing
the necessary formalities, he filed a complaint. The learned
Magistrate, upon consideration of the evidence, found the
petitioner/accused guilty and sentenced him to suffer simple
imprisonment for one month and to pay compensation of
Rs.10,00,000/- to the complainant with default stipulation.
He, therefore, preferred an appeal against his conviction
before the Court of Sessions. In this appeal, the
petitioner/accused filed an application under Section 391
CrPC and sought permission to examine the Life Insurance
Agent/officer, Income Tax officer and Handwriting Expert.
The Additional Sessions Judge rejected the aforesaid
application. Being aggrieved by that order, this petition under
Section 482 of CrPC is preferred.

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5.Ms Divya Parmar, the learned Counsel appearing on
behalf of the petitioner, submitted that the impugned order is
non-speaking, arbitrary and unfair. She submitted that

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Page No. 3 of 7 ____________________________________________ 19 October 2023

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Chitra Sonawane. WP-607-2020.doc

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respondent No.2 had not produced any books of account, and
no evidence was adduced to show the existence of any
transaction between the accused and the complainant. She
submitted that the LIC agent/officer is required to be
examined as the disputed cheque was given to him as payment
towards the LIC policy. She further submitted that the accused
had denied his signature as it is in different handwriting and
the ink is also different; therefore, the same is required to be
sent to a handwriting expert. She submitted that the
complainant had not shown this alleged amount in his income
tax return. Therefore, it is necessary to examine the Income
Tax officer. She submitted that by examining the aforesaid
witnesses, no prejudice will be caused to the petitioner at all;
on the contrary, the reality would come before the Court, and
that would help the Court to do real justice.

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6.Mr V.S.Tiwari, the learned Counsel for the complainant/
respondent No.2, submitted that even though the petitioner/
complainant has had enough number of opportunities to
make such application before the trial Court, no such
application was ever moved. He invited the attention of this
court to the impugned order to submit that the learned
Appellate Court has dealt with all the contentions of the

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Page No. 4 of 7

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19 October 2023

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Chitra Sonawane. WP-607-2020.doc

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petitioner/accused and came to the conclusion that the
application filed by the petitioner/accused was devoid of
merits.

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7.Section 391 of CrPC permits evidence to be taken in
appeal, and for the right decision in the matter, the Appellate
Court should have allowed the application. Section 391 CrPC
says that if the Appellate Court considers such evidence to be
necessary, it shall either record it or cause it to be recorded by
the Magistrate. The introduction of Section 391 CrPC in the
Statute has been for the purpose of making it available to the
Court and not to fill up any gap in the prosecution. The
parties, as of right cannot seek use of Section 391, but must
convince the Court as to why the Court should exercise such
power in their favour.

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8.It reveals from the record that the accused did not enter
into defence after his statement under Section 313 of CrPC
was recorded. The accused did not apply before the
Magistrate, and even did not apply immediately before the
Sessions Court. Although an appeal against the conviction
was filed on 15.3.2016, the application under Section 391
CrPC before the Appellate Court was filed only on 27.4.2017.

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____________________________________________ 19 October 2023

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Chitra Sonawane. WP-607-2020.doc

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There is no explanation why the accused did not feel it
necessary to apply before the Magistrate and even before the
Sessions Judge instantly. The only inference that can be drawn
is that the accused was never serious about examining these
witnesses. It appears that only when the appeal came up for
hearing that this application came to be filed.

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9.Furthermore, in the instant case, I do not find that such
examination of the witnesses is necessary. This I say because it
appears from the judgment of the lower Court that the trial
Court itself had compared the signature of the accused with
his admitted signatures under Section 73 of the Indian
Evidence Act. The learned Appellate Court has also observed
in the impugned order that the complainant produced his
income tax returns before the learned trial Court wherein he
showed the amount of Rs.10,00,000/- outstanding against the
accused. The petitioner/accused seeks permission to lead
additional evidence to examine LIC agent/officer for the
purpose of cheque bearing No.332205. However, it transpires
from the records that the complaint was filed in respect of
cheque bearing No.332204 and not in respect of cheque
No.332205. The decision of this Court in H.K. Taneja v.
Bipin Ganatra1 relied upon by the learned Counsel for the

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1 2008 SCC OnLine Bom 1211

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Page No. 6 of 7 ____________________________________________ 19 October 2023

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Chitra Sonawane. WP-607-2020.doc

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petitioner has no bearing on the case at hand.

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10. Thus, the Appellate Court acting under Section 391 of
CrPC has properly exercised its discretion to reject the
application of the petitioner/accused to lead evidence.

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11. In the circumstances, there is no merit in this petition,
and the petition stands dismissed accordingly.

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Page No. 7 of 7

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19 October 2023

Sanjay Yashwant Kandpile v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sanjay Yashwant Kandpile v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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