TMI Blog2020 (7) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... uments were left out to be marked due to carelessness and ignorance, it could be allowed to be marked for elucidation of truth, in the interest of justice, by exercising powers u/s 391 of Cr.PC. The intention of Section 391 of Cr.PC is to empower the Appellate Court to see that the justice is done between the prosecutor and the prosecuted in the interest of justice. This Court is of the opinion that the Petitioners should be allowed to let in additional evidence subject to provisions of Chapter XXIII of Cr.PC in the presence of the Respondent/ complainant and his counsel. Criminal Revision Petition is allowed. - Crl.RC.No.951 of 2019 - - - Dated:- 20-11-2019 - Mr. Justice A.D. Jagadish Chandira For the Petitioners : Ms.S.Yogalakshmi For the Respondent : Mr.Sheela, SGP ORDER 1. This Criminal Revision Petition is filed, against the order dated, 29.08.2019 made in Crl.MP.No.66 of 2019 in Crl.A.No.535 of 2018, by the I Additional District Sessions Judge, Coimbatore. 2. The facts, leading to filing of this Criminal Revision Petition and necessary for disposal, are as follows:- a) The Petitioner/A1 Company, represented by the Managing Director/2nd Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by order dated 28.09.2016 and the further appeal in ITA.No.3413/Mds/2016 was also dismissed by order dated, 26.05.2017, by the Income Tax Appellate Tribunal and that by letter dated, 24.10.2016, the assessee was required to pay the outstanding demand and stating that failing to pay the same, necessary proceedings under Section 276C(2) of the Act would be initiated, but the assessee defaulted in making payment of penalty and hence, a show cause notice dated 15.03.2017 under Section 276(C)(2) read with 278B(3) of the Act, was served on the assessee Company, to which, a reply dated 28.03.2017 was received and duly considered. f) It is further alleged in the complaint that since the assessee Company 4 deliberately failed to admit the capital gains arising from the above transactions, it was construed that the accused had wilfully evaded payment of penalty due for the assessment year 2012-2013 and thereby committed the offence punishable under Section 276C(2) of the Income Tax Act, 1961. Thereafter, again another show cause notice dated 24.10.2016 was issued to the accused to show cause why Prosecution proceedings under Section 276C(2) read with 278B of the Act should not be initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. b) The conviction was not based on the amount of concealment, but was for willful attempt to evade the payment of taxes under Sections 276C(2) and 278B of the Income Tax Act, 1961. Hence, the net worth certificates in Document Nos.42 to 44 have no relevance to the case. Document No.45 is the annual report for the assessment year 2017-2018, which 6 states that Petitioner/A2 and the Petitioner/A3 are till date in charge of the day today affairs of the Petitioner/A1 Company and hence, the contention of the Petitioner/A2 that the Petitioner/A3 is not in charge of the affairs of the Petitioner/A1 Company is not acceptable. c) Document Nos.35 to 40 are the documents relating to proceedings in the Writ Petition filed before this Court, which relates to fixing of the liability on the Directors for recovery proceedings pertaining to the assessment proceedings and recovery of taxes and hence, they have also no relevance to the case. Document No.41 pertains to the SARFAESI proceedings and hence, it has also no relevance to be marked as an exhibit. d) The accused even under proceedings under Section 313 of Cr.PC did not choose to examine any witness and to mark any documents, thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Petitioners would further submit that the documents listed at S.Nos.1 to 34 are all the income tax returns of the Petitioners for the period from 2007-2008 to 2018-2019 and that the documents listed at S.Nos.35 to 40 are the documents relating to proceedings before this Court in Writ Proceedings, challenging the liability fixed on the Directors and that the document listed as S.No.41 is the notice issued under Section 13(2) of the SARFAESI Act to prove that the properties of the Petitioners were attached and taken possession and sold by the Bank and the Petitioners have not earned any gains out of the sale. She would further submit that the documents are necessarily required to prove that the Petitioner had obtained any gain out of sale by those documents, necessitating the Petitioners to pay the capital gain and that the documents listed as S.Nos.42 to 44 are net worth certificates of the Petitioners to show that they do not have individual properties and that the document No.45 is the Annual Report to prove that the Petitioner/A3 was not the Director during the relevant period. She would submit that the documents have not been produced before the Trial Court due to ineff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire materials available on record. 12.At the outset, it is apposite to refer to Section 391 of Cr.PC as under:- 391. Appellate Court may take further evidence or direct it to be taken. (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take 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. 13.As per Section 391 of Cr.PC, the Appellate Court, if it thinks additional evidence is necessary, shall record its reasons a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:- 8. .Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people. 16.In 2004 4 SCC 158 (Zahira Habibulla H.Sheikh and another Vs. State of Gujarat), it was held as under:- 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the section are only to be invoked when formal proof for the prosecution is necessary. If the appellate court thinks that it is necessary in the interest of justice to take additional evidence, it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of discretion of the appellate court. As reiterated supra, the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the Civil Procedure Code. 19.In this case, the Petition under Section 391 of Cr.PC had been filed by the Petitioners even at the time of presentation of the appeal. These documents sought to be marked as additional evidence are not new documents and they are documents relating to filing of returns with the Respondent in respect of earlier years and the copies of which are also available with the Respondent. By marking of these documents, the nature or course of the case will not be altered. The documents have not been produced before the Trial Court due to inefficiency or inadvertence of the person who conducted the case. Where the documents were left out to be marked due to carelessness and ignorance, it could be allowed to be marked for elucidation of truth, in the interest of justice, by exercising powers under Section 391 of Cr.PC. The intention of Section 391 of Cr.PC is to empower the Appellate Court to see that the justice is done between the prosecutor and the prosecuted in the interest of justice. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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