TMI Blog2023 (6) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer-In-Charge, Delhi [ 1999 (7) TMI 707 - SUPREME COURT] , the Hon ble Apex Court has observed that in the Criminal Court the defence would be entitled to recall witness under Section 311 of the Cr.P.C. It is held that, the lacuna in prosecution is not to be equated with the fallout or an oversight committed by a public prosecutor during trial. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. It is thus held that the power to cross-examine any witness is plenary power and that can be exercised at any stage of the trial if Court finds the same to be necessary for a just decision of the case. In the case of Maria Margarida Sequeria Fernandes and ors. Vs. Era ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read into evidence. So far as the second aspect that is the cross-examination of the complainant, it is the case of the complainant that by way of cross-examination now the petitioner wants to set up altogether a new defence. The defence in the trial court is that the cheques were stolen whereas, from the application now it appears that the petitioner wants to make out a defence that the amount of the cheque is already paid and on that aspect he wants to examine the respondent No. 2. This is also recorded by the learned Sessions Judge - The application therefore is not mere application for correcting the inadvertent mistake. So far as exhibiting of the document is concerned, the Court has already observed that the said documents would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that though the petitioner has produced on record documents in the Trial Court that is account extract, however, inadvertently the same was not exhibited. It is submitted that, in view of the same it is necessary to conduct cross-examination of the respondent No. 2/complainant. He submits that, from the account extract it is clear that, from time to time the petitioner has transferred the amount in favour of the respondent No. 2. The said application came to be objected by the respondent No. 2 stating that at this stage no new evidence can be allowed. Even if the documents are not exhibited, it will not cause any hardship as those documents are admitted. 5. The learned Additional Sessions Judge observed that inadvertently the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the documents so that those can be read into evidence. He submits that, even if the cross-examination is allowed, no prejudice would be caused to the respondents. He submits that the learned Additional Sessions Court ought to have considered the interest of justice which tilts in favour of the petitioner. 7. Learned advocate for respondent No. 2 submits that, this application is filed when the appeal was posted for hearing. The learned Trial Court had rejected similar application. Now by way of further cross-examination the defence is trying to change its case. In the learned Trial Court, the defence taken was that the cheque was stolen by someone and the same is misused. In the appeal, now he wants to bring on record that the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was a case of civil appeal wherein, the Hon ble Apex Court has considered the provisions of Order 41 Rule 27 of the Code of Civil Procedure by holding that such applications are to be considered at the stage of final hearing. 12. In the case of Ashok Tshering Bhutia Vs. State of Sikkim reported in 2011 CRI.L.J. 1770, the Hon ble Apex Court has held that, to give additional evidence at appellate stage is permissible in case of failure of justice, however, such power must be exercised sparingly and only in exceptional suitable cases where the Court is satisfied that additional evidence would serve the interest of justice. The discretion would depend upon the facts and circumstances of individual case. The Hon ble Apex Court has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court finds that, the application under Section 391 of the Cr.P.C. needs to be considered in the facts of the case. The principle underlying under Section 41 Rule 27 need not be considered while considering the application under Section 391 of the Cr.P.C. It also requires a consideration as to what is the nature of the evidence that is sought to be produced in the appeal. It is not a case of the petitioner in this case that he discovered some new fact or the document or material only after filing of the appeal. It is also not a case that in spite of due diligence he could not get the material during the course of trial. In this petition there are two prayers (i) to allow to exhibit the documents which are already produced on record and (i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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