JUDGMENT 1. The present Criminal Misc. Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused to quash and set aside the impugned order dated 24/11/2008 passed below Exh.24 in Criminal Appeal No.48 of 2007 by learned Additional Sessions Court and Fast Track Court, Gandhinagar, by which, prayer of the applicant herein to lead an additional evidence at appellate stage in exercise of power under Section 391 of the Code of Criminal Procedure, has been rejected. 2. Facts leading to the present application, in nutshell, are as under: Respondent No.2 herein – original complainant had instituted the complaint being Criminal Case No.1041 of 2005 against the applicant herein – original accused in the Court of Judicial Magistrate (First Class), Gandhinagar for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheque No.409897 for Rs.7,00,000/- and cheque No.138879 for Rs.50,000/-. That the applicant herein came to be tried for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheques in question. It was the specific case on behalf of the applicant herein – original accused that the aforesaid cheques in question were not issued by him and were not signed by him and were not drawn from the Bank Account maintained by him. In support of his above submission, he produced Certificate issued by the Manager of the Punjab National Bank at Exh.51 and Statements of Bank Account, from which, the cheques in question were drawn. However, learned Magistrate did not accept the same on the ground that the applicant herein has failed to rebut the same by leading evidence. Thereafter, learned Magistrate by impugned judgement and order dated 08/08/2007 convicted the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act and directed the applicant herein – original accused to undergo simple imprisonment for six months and imposed fine of Rs.3,000/- and further directed the applicant herein – original accused to pay Rs.7,50,000/- to the original complainant towards compensation. 3. Being aggrieved by and dissatisfied with the judgement and order of conviction dated 08/08/2007 passed by learned Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar in Criminal Case No.1041 of 2005, the applicant herein – original accused had preferred Criminal Appeal No.48 of 2007 before learned Sessions Court, Gandhinagar. 3. Being aggrieved by and dissatisfied with the judgement and order of conviction dated 08/08/2007 passed by learned Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar in Criminal Case No.1041 of 2005, the applicant herein – original accused had preferred Criminal Appeal No.48 of 2007 before learned Sessions Court, Gandhinagar. That in the said appeal, the applicant herein submitted application Exh.24 requesting the learned Appellate Court to permit the applicant herein to lead the additional evidence and to examine the Manager of the Punjab National Bank, to prove that the cheques in question, which were dishonoured, were not signed by the applicant herein and the said cheques in question were not drawn from the Bank Account maintained by the applicant herein – original accused. That the said application at Exh.24 has been rejected by the learned Appellate Court by holding that at the relevant time during the trial, the applicant herein – original accused was given an opportunity to lead the evidence and rebut the presumption under Section 138 of the Negotiable Instruments Act. Therefore, he cannot be permitted to fill up the lacuna at the appellate Stage. Learned Appellate Court held that the applicant herein could have proved the same by leading the evidence at the relevant time, which the applicant has failed and therefore learned Appellate Court has rejected the said application at Exh.24. Being aggrieved by and dissatisfied with the impugned order passed by learned Appellate Court in rejecting the said application at Exh.24 in Criminal Appeal No.48 of 2007 and in not permitting the applicant herein to lead additional evidence in exercise of power under Section 391 of the Code of Criminal Procedure, the applicant herein – original accused has preferred the present Criminal Misc.Application under Section 482 of the Code of Criminal Procedure. 4. Mr.Sudhanshu Patel, learned advocate appearing on behalf of the applicant herein – original accused has submitted that the Appellate Court has materially erred in rejecting the application submitted by the applicant herein permitting him to lead additional evidence to prove that the cheques in question were not issued by the applicant herein and were not drawn from the Bank Account maintained by the applicant herein. It is submitted that the aforesaid aspect goes to the root of the matter and arrive at just conclusion and, therefore, the learned Appellate Court to exercised the powers under Section 391 of the Code of Criminal Procedure and permitted the applicant herein to lead additional evidence. It is submitted that as such there was a specific case on behalf of the applicant herein – original accused, even at the time of recording of Further Statement under Section 313 of the Code of Criminal Procedure, that cheques in questions, which were dishonoured, were not signed by the applicant herein – original accused and not drawn from the Bank Account maintained by him and, therefore, the applicant herein cannot be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. It is submitted that the applicant herein has also produced Certificate issued by the Manager of the Punjab National Bank and Statements of the Bank Account to show that the Bank Account, from which, the cheques in question were issued, was belonging to one Viral Patel. It is submitted that if learned Appellate Court was of the opinion that there was negligence on the part of the applicant herein – original accused for not examining the said Manager at the relevant time, in that case, the applicant herein could have been saddle with the liability to pay the cost to the original complainant and ought have allowed the applicant to lead additional evidence to do substantial justice and more particularly when it goes to the root of the matter. 5. Mr.Sudhanshu Patel, learned advocate appearing on behalf of the applicant herein has relied upon the decision of the Hon'ble Supreme Court in the case of Mohanlal Shamji Soni V/s. Union of India and another reported in AIR 1991 SC 1346 and has submitted that as observed and held by the Hon'ble Supreme Court, power to summon any person as witness or to recall and reexamine him, can be exercised at any stage of proceeding, provided examination of such person is essential for just decision of the case. Mr.Patel, learned advocate appearing on behalf of the applicant herein has also relied upon decision of the Hon'ble Supreme Court in the case of State of Gujarat V/s. Shri Mohanlal Jitamalji Porwal & Anr. Mr.Patel, learned advocate appearing on behalf of the applicant herein has also relied upon decision of the Hon'ble Supreme Court in the case of State of Gujarat V/s. Shri Mohanlal Jitamalji Porwal & Anr. reported in 1987 Cr.L.R. (SC) 325 in support of his prayer to allow application Exh.24 in Criminal Appeal No.48 of 2007 and permitting the applicant herein to lead additional evidence and permit him to examine the Manager of the Punjab National Bank. It is submitted that the applicant herein is ready and willing to pay cost for such delay and for not examining the said witness at the time of trial, which, in fact, according to the applicant, is bonafide and/or through oversight the Manager of the Punjab National Bank was not examined at the relevant time. It is further submitted by Mr.Patel, learned advocate appearing on behalf of the applicant herein that if the original complainant shall be given an opportunity to cross-examine the said witness, no prejudice shall be caused to the original complainant. Therefore, it is requested to allow the present application and to allow the application at Exh.24 on imposing reasonable cost, which may be determined by this Court, to be paid by the applicant herein – original accused to the original complainant. 6. The present application is opposed by Mr.V.M.Pancholi, learned advocate appearing on behalf of respondent No.2 herein – original complainant. It is submitted that in the facts and circumstances of the case, learned Appellate Court has not committed any error and/or illegality in rejecting the application submitted by the applicant herein for leading additional evidence. It is further submitted that at the time of trial there was an ample opportunity with the applicant herein to lead the evidence and to examine the Manager of the Punjab National Bank and to prove that the cheques in question were not belonging to the applicant herein and the same were not drawn from the Bank Account maintained by him. As such the applicant has failed to lead evidence at an appropriate stage during the trial, and, therefore, the Appellate Court has rightly rejected the said application at appellate stage. It is submitted that it was not the case of the applicant herein, while cross-examining the original complainant, that the cheques in question were not issued by him and were not drawn from the Bank Account maintained by him. It is submitted that it was not the case of the applicant herein, while cross-examining the original complainant, that the cheques in question were not issued by him and were not drawn from the Bank Account maintained by him. On the contrary, it was the case on behalf of the applicant herein – original accused while cross-examining the original complainant that entire amount under the cheques in question have been paid to the complainant and nothing is due and payable to the original complainant. Therefore, it is submitted that the applicant herein cannot be permitted to fill up the lacuna by leading additional evidence at appellate stage. It is submitted that the applicant herein - original accused has missed the stage to lead an additional evidence, which cannot be permitted at appellate stage, as it will be disadvantageous to the original complainant. Therefore, it is requested to dismiss the present application. 7. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent No.1 State has requested to pass an appropriate order considering the aforesaid facts and circumstances of the case. 8. Heard learned advocates appearing on behalf of the respective parties at length. 9. At the outset, it is required to be noted that the applicant herein has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheques. It is also required to be noted at this stage that that even at the stage of recording Further Statement of the applicant herein – original accused under Section 313 of the Code of Criminal Procedure, it was the specific case on behalf of the applicant herein – original accused that cheques in question do not belonging to him and the same were not drawn from the Bank Account maintained by him and, therefore, the applicant herein – original accused cannot be convicted for the offences punishable under Section 138 of the Negotiable Instruments Act. It is also required to be noted at this stage that in support of the above submission, the applicant herein - original accused also produced the Certificate issued by the Manager of the Punjab National Bank, certifying that Bank Account from which the cheques in question were drawn, does not belong to the applicant herein – original accused and it is belonging to the one Mr.Viral Patel. The said Certificate is produced at Exh.51. The said Certificate is produced at Exh.51. The applicant herein also produced the statement of Bank Account, from which the cheques in question were drawn and the learned Magistrate has also observed in the said judgement and order of conviction that the said account is belonging to Mr.Viral Patel. Unfortunately, for whatever the reason, the applicant herein – original accused did not examine the Manager of the Punjab National Bank to prove the document, which has produced at Exh-51 and only on the aforesaid ground, the Magistrate has convicted the applicant herein – original accused for the offence punishable under Section 138 of the Negotiable Instruments Act. That at appellate stage, the applicant herein has submitted application at Exh.24 in Appeal requesting to permit him to lead additional evidence and to examine the Manager of the Punjab National Bank to prove that the Bank Account, from which, the cheques in question were issued and were dishonoured, did not belong to him but it belonged to another person namely Mr.Viral Patel. The aforesaid aspect goes to the root of the matter. Considering Section 138 of the Negotiable Instruments Act, a person can be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, if it is proved that the cheque, which is dishonoured, is issued and signed by the concerned person and from the Bank Account maintained by him. Therefore, on evidence, if it is proved by the applicant herein by leading appropriate evidence that the Bank Account, from which the cheques in question were issued and which were dishonoured, were drawn from the Bank Account not maintained by the applicant herein, the result can be different and the applicant herein – original accused may not be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, it appears to this Court that learned Magistrate ought to have exercised the jurisdiction and ought to have permitted the applicant to lead the additional evidence by examining Manager of the Punjab National Bank to prove his case that cheques in question, which were dishonoured, were not drawn from the Bank Account maintained by him. As stated hereinabove, the aforesaid aspect goes to the root of the matter. As stated hereinabove, the aforesaid aspect goes to the root of the matter. Learned Magistrate ought to have appreciated that it affects the conviction of the person and as such by not examining the Manager of the Punjab National Bank at the relevant time, the applicant herein – original accused was not likely to get any advantage or benefit. It was the specific case on behalf of the applicant herein that the cheques in question were not signed by him and cheques in question were not drawn from the Bank Account maintained by him and in support of the said contention, the applicant did produce the Certificate issued by Manager of the Punjab National Bank. If the learned Appellate Court was of the opinion that it was at the belated stage, the Court could have imposed the cost and allowed such application for leading additional evidence to prove the innocence of the applicant herein – original accused rather than dismissing the same on technical ground that the applicant herein could have examined the Manager of the Punjab National Bank, earlier during the trial. 10. Identical question came to be considered by Hon'ble Supreme Court in the case of Mohanlal Shamji Soni (Supra), wherein it is held that power to summon any person as witness or to recall and re-examine him, can be exercised at any stage of proceedings, provided examination of such person is essential for just decision of the case and opportunity to rebut should be given to other party whenever new evidence is admitted under Section 540 of the Code of Criminal Procedure. It is further observed and held by the Hon'ble Supreme Court in the said decision that in fact it is the duty of a Court not only to do justice but also to ensure that justice is being done. It is further observed and held by the Hon'ble Supreme Court in the said decision that in fact it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 391 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated. While exercising powers under Section 489 of the Code of Criminal Procedure every endeavor should be made to arrive at and to find out the truth and render a just decision. If for any reason, the appellate Court finds either because of the negligence and for any other reason at the relevant time, the evidence is not lead by any other side, the other side can be punished by way of costs, however, the Appellate Court is required to keep in mind that the Court has to find out the truth and arrive at truth and render a just decision. Under the circumstances, it appears to the Court that the learned Appellate Court has materially erred in rejecting the application submitted by the applicant herein – original accused for leading additional evidence and in not permitting to examine the Manager of the Punjab National Bank to prove his defence that the cheques in question were not drawn on the Bank Account maintained by him and he has not committed any offence punishable under Section 138 of the Negotiable Instruments Act. As stated hereinabove, the aforesaid aspect goes to the root of the matter and, therefore, to render just decision, learned Appellate Court ought to have allowed application Exh.24, even on imposing reasonable cost. 11. In view of the above and for the reasons stated hereinabove, the application succeeds. As stated hereinabove, the aforesaid aspect goes to the root of the matter and, therefore, to render just decision, learned Appellate Court ought to have allowed application Exh.24, even on imposing reasonable cost. 11. In view of the above and for the reasons stated hereinabove, the application succeeds. The impugned order dated 24/11/2008 passed below Exh.24 in Criminal Appeal No.48 of 2007 by learned Additional Sessions Court and Fast Track Court, Gandhinagar, is hereby quashed and set aside and the said application at Exh.24 in Criminal Appeal No.48 of 2007 is hereby allowed and the applicant herein – original accused is permitted to lead additional evidence and to examine the Manager of the Punjab National Bank on condition that the applicant herein – original accused shall pay Rs.25,000/- (Rupees Twenty Five Thousands only) within a period of five weeks from today, to the original complainant, towards cost, (which learned advocate appearing on behalf of the applicant herein has agreed to pay to the original complainant). 12. As agreed by the learned advocate appearing on behalf of the applicant herein – original accused that the learned Appellate Court may record additional evidence by himself or the Appellate Court may send the matter to the learned Judicial Magistrate, First Class, Gandhinagar for recording additional evidence and for examining Manager of the Punjab National Bank, considering Section 391 of the Code of Criminal Procedure. However, the same is left to the discretion of the Appellate Court. However, entire exercise shall be completed within a period of six months from the date of receiving the copy of the present order. Rule is made absolute to the aforesaid extent.