Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 726 (RAJ)

Gordhan Lal v. State of Rajasthan

2006-03-02

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-Having been convicted for offence under Section 138, Negotiable Instruments Act (for short, “the Act” hereinafter) by the Court of Additional Chief Judicial Magistrate, Makrana, petitioner Gordhan Lal made an application under Section 391, CrPC for evidence of the hand-writing expert at the appellate stage before the learned Additional Sessions Judge, Parbatsar in his appeal. The appellate Judge found and categorically observed that appellant (petitioner herein) was afforded sufficient opportunity for his defence and he admitted his signature on the cheque in question at the trial, therefore, in the absence of sufficient reasons, the learned appellate Judge rejected the application vide impugned order dated 110.2004. 2. In the present petition under Section 482, CrPC challenging the validity of order dated 110.2004, the petitioner contends that examination of the cheque in question by the hand-writing expert is absolutely necessary for just and fair decision of the petitioners appeal. It is contended that the learned Court below has erred in rejecting the application of the petitioner moved under Section 391, CrPC, because it is further necessary for the Court also to arrive at correct decision on the question in issue. Learned Counsel for the petitioner contended that at the trial of the case it was specific defence of the petitioner that the cheque in question was lost by him and he had, thereafter, closed the account and it is only after closure of the account that the said cheque came to be mis-utilized by the complainant by filling in entries in the cheque. It is argued by the learned Counsel that in the face of the facts on record the appellate Court ought to have allowed the prayer of the petitioner for just and fair decision because it had been throughout the case of the petitioner that the petitioner lost the cheque and it had been misutilized by the complainant after the petitioner having closed his account with the Bank. 3. Learned Counsel for the non-petitioner vehemently urged that enough opportunity was available to the petitioner at the trial and it is judicious discretion of the Court under Section 391, CrPC to permit additional evidence to be led at the appellate stage which can only be done when apparent failure of justice may be occasioned in the absence of the suggested evidence coming on record. He submits that the learned lower Court has dealt with obvious reasons for not conceding the request of the petitioner and the power under Section 391 of the Code of Criminal Procedure cannot be invoked to fill in any lacunae. He argued that while the petitioner was himself examined as DW. 1 at the trial he specifically admitted his signature on the cheque in question and further stated in his cross-examination that he did not give any information to the Bank with respect to loss of the cheque. Learned Counsel for the non-petitioner contended that when the prosecution has proved its case beyond any manner of reasonable doubt and the trial Court has convicted the petitioner, now in the appeal, the petition is indulging in procrastination of the proceedings. 4. The learned appellate Court rejected the application of the petitioner on the ground that at the trial a specific question was put to the petitioner when he was examined as DW. 1 whether he gave any information to the Bank with regard to loss of the cheque in question from his possession. In the cross-examination, the petitioner himself admitted that no information was given by him to the Bank. Moreover, it is specifically indicated in the impugned order that at the trial the petitioner accepted his signature on the cheque in question and, therefore, at the appellate stage, the application filed under Section 391, CrPC in respect of admitted document could not be said to have any force. 5. Having carefully perused the impugned order, I have also gone through the provisions of Section 391, CrPC. The language of the section gives discretion to the Court at the time of dealing with the matter at the appellate stage and the Court, if it thinks additional evidence to be necessary, shall record reasons and may thereafter, take such evidence itself or direct it to be taken by a Magistrate or, when the appellate Court is High Court, by the Court of Sessions or a Magistrate. On the facts and evidence on record, the learned appellate Court rightly rejected the prayer of the petitioner in the absence of sufficient reasons for exercise of the power under Section 391, CrPC. 6. On the facts and evidence on record, the learned appellate Court rightly rejected the prayer of the petitioner in the absence of sufficient reasons for exercise of the power under Section 391, CrPC. 6. It may also be noted that this Court, in exercise of inherent power under Section 482, CrPC would not substitute its own discretion with fresh application of mind on the facts and circumstances of the case inasmuch as this Court, under Section 482, CrPC, must ensure only that proceedings does not occasion failure of justice or that it does not tantamount to abuse of the process of Court. This Court may further act to secure the ends of justice. But, in none of the situations, it can be attempted to draw up fresh conclusion to substitute the conclusion of the lower Court reached after application of mind. 7. I see no reason to interfere in the order passed by the lower appellate Court. The petition is accordingly dismissed.