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TMI Blog2022 (7) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... ruments 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 of the petitioner and the respondent no 2 raised a bill amounting to Rs.1,07,500/-. The petitioner issued a cheque bearing no 781861 dated 28.07.2006 amounting to Rs. 1,00,000/-drawn on Punjab and Sind Bank, Rajouri Garden to discharge said liability andsaid cheque was got dishonoured due to "closure of account" on presentation for encashment and the petitioner did not pay cheque amount despite notice dated 07.11.2006. 3. The petitioner vide judgment dated 12.03.2018 passed by the court of MM-01 (NI Act), West, Delhi (hereinafter referred to as "the trial court") was held guilty for committing the offence punishable u/s 138 of the Negotiable Instruments Act, 1888 and was accordingly convicted. The petitioner vide order on sentence dated 20.03.2018 was sentenced till the rising of the court and to pay double amount of the cheque. The petitioner being aggrieved filed appeal bearing Criminal Appeal No 103/2018 titled as Harkesh Chadha V State & another which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the accusedappellant that though the cheque was handed over in 2004 and subsequently even the cash amount was handed over, the complainant did not return the cheque and instead altered the date on the cheque and thereafter, misused it. Arguments on the present application were addressed only on behalf of the Appellant-applicant. Same have been duly considered and-further, record has also been perused. 4. The Appellant's plea/submission that his son was born in February and consequently, there was no reason for him to have celebrated the birthday in May, was considered by the learned Trial Court. However, the plea was rejected on the ground that Appellant could have filed the birth certificate on record to prove his assertion but he did not do so. 5. Neither in the application at hand nor during the course of submissions, any reason has been put forth for not filing the birth certificate before the learned Trial Court except that it is material for just decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. For the foregoing reasons, the application is declined along with cost of Rs.2,000/- to be deposited with DLSA, West District. 6. The petitioner being aggrieved filed the present appeal and challenged the impugned order on grounds that the impugned order dated 02.07.2019 is bad in law and is against the law and fact. The appellate court has erred by not allowing the petitioner to place fresh evidence to rebut the reasons given in the judgment by the trial court and for just adjudication of the appeal filed by the Petitioner. The appellate court misinterpreted statement of DW2. The petitioner himself renders catering services and as such there was no occasion for the petitioner to take catering services from the respondent No. 2 for the celebration of birthday of his son. The documents pertaining to chit-fund business would show that the alleged cheque was never issued for the purposes mentioned by the respondent no 2 in the complaint. The petitioner by these documents could rebut the presumption raised agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be exercised only in suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. The Supreme Court in Rajeswar Prasad Misra V State of West Bengal and another, AIR 1965 SC 1887 considered scope of section 391 and observed that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. The additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. It was observed as under:- 9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said 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. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary. 10. The Supreme Court in Brig. Sukhjeet Singh (Retd), Mvc V The State of Uttar Pradesh, Criminal Appeal No148 of 2019 decided on 25th January, 2019 has rejected the findings given by the High Court while upholding decision of the Appellate Court in dismissing application under section 391 of the Code that the present exercise initiated by the applicant for filing additional evidence at such a belated stage appears to be with some ulterior mala fide motive or delaying the decision of the appeal to eternity. It was observed that this court has laid down that when it becomes necessary to take additional evidence, cannot be enlisted or enumerated in any fixed formula and it depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not. 11. The Supreme Court in Zahira Habibulla H. Sheikh and another V State of Gujarat and others, AIR 2004 SC 346 while dealing with Section 391 of the Code held as under:- 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was further observed that even if the said documents are received as evidence and taken into consideration, the decision of the trial Court would not be changed. The Uttarakhand High Court in Anshu Jain V State of Uttarakhand & another, Criminal Revision No.80 of 2018 decided on 25th February, 2020 while upholding order of the appellate court whereby application under section 391 of the Code was dismissed observed that the revisionist has failed to even plead the necessary ingredients of Section 391 of the Code andthere is no averment in the application that the document sought to be relied upon by the revisionist is necessary in the present case and the appeal would lead to failure of justice. 14. The counsel for the petitioner submitted written submissions and advanced oral arguments. The counsel for the petitioner argued that the birth certificate of son of the petitioner would prove that the birthday of son of the petitioner falls on 9th February and not on 14.05.2006 and as such there was no occasion for the petitioner to take catering services from the respondent no 2 and the petitioner himself is a caterer. The said defence taken by the petitioner was rejected by the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 raised bill dated14.05.2006 amounting to Rs. 1,07,500 and the said bill after deliberations was settled for Rs. 1,00,000. The petitioner issued cheque bearing No. 781861 dated 28.07.2006 drawn on Punjab and Sind Bank, Rajouri Garden, New Delhi 110027 for Rs.1,00,000 which on presentation returned dishonoured on two occasions with remarks "account closed" vide returning memos dated 01.11.2006 and 01.11.2006. The petitioner did not pay cheque amount despite demand notice dated 07.11.2006. The respondent led evidence. The petitioner in statement recorded under section 313 read with section 281 of the Code on 02.02.2013 denied providing of catering services by the respondent no 2 and stated that the cheque in question was given to the maternal uncle of the respondent no 2 in respect of a committee/chit fund which was to be returned back after receipt of amount but the respondent no 2 did not return said cheque despite receipt of amount and was misused after alteration of date. The petitioner led defence evidence and examined himself as DW1 and Ravinder Kumar Lamba as DW2.The trial court observed that the petitioner did not dispute presentation of the cheque for encashment and its di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the appellant would not be able to prove handing over the cheque in question in the year 2004 to the respondent no 2 on the strength of these unsigned documents. The appellate court by giving appropriate reasoning rightly disallowed prayer of the petitioner to place these documents as additional evidence. 19. The petitioner also did not put forward cogent reasons for placing documents pertaining to his catering business. The nature of business being carried by the appellant does not have any relevance in context of present dispute between the respondent no 2 and the petitioner. The appellate court rightly observed that surety bond sought to be proved would only show that the respondent no 2 was aware about catering business of the petitioner and ITR of the petitioner does not appear to be relevant. 20. The arguments advanced by the counsel of the petitioner are considered in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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