TMI Blog2022 (7) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... e justified in allowing further evidence under Section 391. But such power must be exercised only in suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. The Supreme Court again in Rambhau and another V State of Maharashtra, [ 2001 (4) TMI 937 - SUPREME COURT ] had noted the power of the Appellate Court under section 391 of the Code and observed that there is available a very wide discretion in the matter of obtaining additional evidence in terms of section 391 of the Code. However additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. The petitioner wants to file contain documents to establish monetary transactions in regard to a chit fund between him and the respondent no 2. The trial court in final judgment did not believe the defence of the petitioner that cheque was given to the uncle of the respondent no 2 by giving detailed reasons. The appellate court in impugned judgment also observed that the documents are hand written notes and not signed by anyone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R KUMAR JAIN Petitioner Through: Mr. Yatharth Rohila Advocates. Respondents Through: Mr.Ashok Kumar Garg, Additional Public Prosecutor for respondent no 1/State Mr. Kanwal Chaudhary, Advocate for respondent no 2. JUDGMENT 1. This judgment shall decide present petition under section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) for setting aside the order dated 02.07.2019 (hereinafter referred to as the impugned order ) passed by the Court of Additional Sessions Judge-05, West, Tis Hazari Courts, Delhi (hereinafter referred to as the appellate court ) in Criminal Appeal bearing no 103/2018 titled as Harkesh Chadha V State another whereby an application under section 391 of the Code filed by the appellant was dismissed. 2. The factual background necessary to mention for disposal of present petition is that the respondent no 2/complainant has filed a complaint under section 138 of the Negotiable Instruments Act, 1881 titled as Sanjay Dewan V Harkesh Chadha bearing CC no 969/2016 on allegations that the petitioner hired services of the respondent No. 2 to provide food catering on 14.05.2006 on occasion of birthday of the son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l background would be necessary. 3. Complainant Sanjay Dewan filed a complaint against the appellant-accused under Section 138 of the NI Act after dishonour of a cheque of Rs.1lac which was purportedly given by the Accused-appellant to the Complainant in discharge of a catering invoice raised by the Complainant. The invoice, statedly, was in respect of a catering event organized by the Appellant to celebrate the birthday of his son. Before the trial court. Appellant-accused denied holding any such birthday function. It was submitted before the learned trial court by the Appellant-accused that the event is said to have been organized on 14.5.2006 whereas his son was born on 9.2.2001. Consequently, there was no reason for him to have held a function in May i.e. 14.5.2006 for celebrating the birthday of his son when his birthday fell in February. Further, the major defense raised before the Trial Court was that the cheque in question was infact handed over to the Complainant as a security for payment of a chit fund contribution of one lac rupees on behalf of the Accused-appellant since the chit fund was being part managed by the Uncle of the Complainant. It was further asserted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d knowledge about appellant-accused having been engaged in catering business. This contradiction does not in any manner affect the merits of the defense raised since appellant-accused did not assert that he never required the services of the complainant because he himself was a caterer. 8. The third document i.e. ITR of the Appellant does not appear to be relevant at all. No argument was addressed to highlight its relevance nor any is mentioned in the application at hand. 9. Lastly, the appellant wants to file contain documents to show that appellant and the complainant had monetary transactions in regard to a chit fund. The documents filed along with the application are not signed by anyone but are hand written notes. Additionally, the documents purport to be accounts of various persons for the year 2001 and 2002. It is not understandable as to how will the Appellant prove his assertion of handing over the cheque in question in the year 2004 to the complainant for the purpose of a claimed chit fund on the Strength of unsigned documents and which pertain to the year 10.The application at hand appears to have been moved only to delay the disposal of the Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate. (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. 8. The relevant words incorporated in section 391(1) are if it thinks additional evidence to be necessary which implies necessary for deciding the appeal to secure ends of justice and there are no fetters on the power under Section 391 of the Code. The legislative intent in enacting Section 391 is to empower the appellate court to see that justice is done and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in allowing further evidence under Section 391. But such power must be exercised only in suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. The Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the interests of justice. It was held as under:- 15. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. 10. The Supreme Court in Brig. Sukhjeet Singh (Retd), Mvc V The State of Uttar Pradesh, Criminal Appeal No148 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391 Cr.P.C. 13. The Madras High Court in Munusamy V State, Crl.A.No.723 of 2019 decided on 21st January, 2021 observed that the Court can exercise power under Section 391 of the Code and can allow the additional evidence in interest of justice if any material is available with the defence and not produced or suppose subsequently came to knowledge about the material, in the interest of justice. However court refused to entertain application under section 391 of the Code being after thought by observing that as the documents were available at the time of trial and examination of the witnesses, the documents were not suggested before the witnesses and the appellant not filed the documents at the earliest point of time. It was further observed that the appellant has invoked section 391 of the Code to protract the appeal and fill up lacunae and it cannot be invoked in any extraneous circumstances. It was further observed that even if the said documents are received as evidence and taken int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainable in law and facts. The petitioner after concluding of defence evidence in March, 2017 filed an application under section 91 of the Code read with section 45 of the Evidence Act which was dismissed vide order dated 09.08.2017 and Criminal Revision Petition was also dismissed vide order dated 09.01.2018. The appellate court in the impugned order rightly held that application has been moved only to delay the disposal of the appeal and the appellate court did not commit any infirmity or error in impugned order. The application under section 391 Cr. P.C. is to be considered by the appellate court with great care and caution. The application is liable to be dismissed. 16. The respondent no 2 in complaint filed under section 138 of the Negotiable Instruments Act, 1888 titled as Sanjay Diwan V Harkesh Chaddha bearing no 969/2016 as appearing from the judgment dated 12.03.2018 passed by the trial court alleged that the respondent no 2 being an event manager-cum-catering consultant was engaged by the petitioner to provide catering for 300 persons on 14.05.2006 and for said catering service, the respondent no 2 raised bill dated14.05.2006 amounting to Rs. 1,07,500 and the said b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner provided catering services for the birthday function of the son of the petitioner. The appellate court in impugned judgment also observed that the petitioner neither in the application nor during the course of submissions submitted any reason for not filing the birth certificate before the trial court and observed that such evidence could have been led before the trial court and the application under section 391 of the Code was moved at a belated stage. The appellate court also discussed relevance of proving birth certificate of son of the appellant in light of cross examination of DW2 who admitted that the respondent no 2 had organized the function for the birthday of son of the petitioner and provided catering service and held that there remains no relevance to prove the birth certificate of the son of the petitioner. The appellate court gave justified and logical reasoning while rejecting prayer of the petitioner for filing birth certificate of son of the petitioner. 18. The petitioner wants to file contain documents to establish monetary transactions in regard to a chit fund between him and the respondent no 2. The trial court in final judgment did not believe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
