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TMI Blog2018 (1) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... he said cheque was returned with intimation that the account is closed. The petitioner/complainant issued demand notice and in spite of that no payment was made and hence, the complaint was filed on 20th April, 2013. 5] The trial commenced. The evidence was recorded. Statement of the accused were recorded under Section 313 of the Code of Criminal Procedure. By Judgment and Order dated 28th July, 2015, the Trial Court was pleased to convict the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act and she was sentenced to suffer S.I. for two months and was directed to pay a fine of Rs. 4,10,000/. It was further directed that on realizing the fine, the same shall be given to the complainant in accordance with Section 357(1)(b) of the Code of Criminal Procedure. 6] The respondent/accused challenged the Judgment and Order dated 28th July, 2015 by preferring an appeal bearing Criminal Appeal No. 85 of 2015 before the Sessions Court at Latur. On 26th August, 2015, the respondent also preferred an application for suspension of sentence, pending the appeal. By order dated 27th August, 2015, the learned Additional Sessions Judge, Latur passed an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to file affidavit of three witnesses before the Court on the next date without fail and furnish copies to the respondent therein. The accused was directed to secure the presence of the witnesses for crossexamination at the hands of the complainant. The application was thus, disposed of vide order dated 4th March, 2016. 9] While passing order dated 4th March, 2016, the Court had observed that lacuna must be in factual matrix of the prosecution case. If there is any irregularity in conducting trial from the side of the prosecution and if, later on, it is tried to be cured, then it cannot be said to be an attempt to fill up the lacuna. It was further observed that in the present case, the accused took specific defence while examining the complainant and that the complainant had given certain admissions to that effect, which were held to be insufficient by the Trial Court. It was further observed that in paragraph 15, the Trial Court has stated that the accused ought to have examined the witnesses referred to therein to support her contention and, therefore, the appellant wants to examine these witnesses. It was also observed that the Court cannot ignore statutory mandate under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses in support of her evidence, there was no occasion to allow the application for additional evidence. It is, therefore, submitted that the application may be rejected. 11] The learned counsel for the petitioner relied upon the decision of Supreme Court in the case of Ajay Kumar Vs. Gaurav and Anr. delivered in Cri. Appeal No. 719 of 2009 and another decision of this Court in the case of Maheshwar Kale Vs. Capt. Atul Divekar reported in 2006 (1) MhLJ, 700. 12] Per contra, the respondent contends that in the interest of justice, the application has been rightly allowed by the Court. It is submitted that no prejudice would be caused to the complainant. The defence of the accused is reflected in the crossexamination of the complainant and from the evidence which has come on record the prayer to examine the said witnesses, at this stage, cannot be rejected. It is submitted that the accused must be given an opportunity to defend and as a principle of fair trial, the accused has been rightly permitted to lead additional evidence. The Appellate Court has vide powers under Section 391 of the Cr.P.C. and, therefore, the order do not require interference. It is further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act. The trial commenced. The evidence of the complainant was recorded. Statement of the accused recorded under Section 313 of the Code of Criminal Procedure. The Trial Court vide order dated 28th July, 2015 convicted the respondent for the offence punishable under Section 138 of the Negotiable Instrument Act and sentenced to imprisonment and for payment of fine. 15] The Trial Court has analyzed the evidence on record and convicted the respondent. The complainant examined himself in support of his complaint. He was subjected to detail crossexamination, the Trial Court has observed that nothing material proof to come on record to cast doubt on his oral evidence. The complainant has supported his case. In support of the complaint, the complainant also examined another witness who did not depose in consonance with the version of the complainant. The defence of the accused was that the disputed cheque was deposited by way of security. The niece of the accused has purchased property from the complainant. The husband of the accused had given blank cheque to the complainant. It is also contended that one signature showing as executed an agreement of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.' 17] On reading the said provision it is clear that, the Appellate Court if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by the trial Court. 18] The Appellate Court allowed the said application on the application of respondent and more particularly on the basis of the observations made by the Trial Court while convicting the appellant. Thus, respondent/appellant intends to controvert the observation made by the Trial Court while convicting the respondent by adducing the purported evidence. The applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 391 is to subserve the ends of justice and get the truth. Section 391 is salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal Section, Section 391 of the Cr.P.C. is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The provisions has to be exercised with great care. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before the Court or vindication of an innocent person in the said case. In the said case, the application to lead additional evidence was rejected which order was challenged before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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