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2017 DIGILAW 108 (ORI)

Purna Chandra Samal v. State of Orissa

2017-01-25

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. 1. This is an application under section 391 read with section 401 of Cr.P.C. filed by the petitioner Purna Chandra Samal for taking evidence of six prosecution witnesses examined in G.R. Case No. 649 of 2010 pending in the Court of learned J.M.F.C., Barbil as additional evidence in the criminal revision. As it appears that the petitioner faced trial in the Court of learned J.M.F.C., Barbil in I.C.C. Case No. 34 of 2010/T.C. No. 735 of 2010 for commission of offence under section 138 of the Negotiable Instruments Act and he was found guilty of the aforesaid offence and was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 2,30,000/- (rupees two lakhs thirty thousand only) to the complainant vide impugned judgment and order dated 24.10.2011. The petitioner preferred an appeal which was dismissed by the learned Addl. Sessions Judge, Champua in Criminal Appeal No. 3 of 2012. CRLREV No. 787 of 2013 has been filed before this Court challenging the aforesaid judgments and orders passed by the learned Trial Court as well as the learned Appellate Court. 2. Mr. Hrudananda Mohapatra, learned counsel for the petitioner contended that the petitioner had borrowed a sum of Rs. 1,00,000/- (rupees one lakh only) from the opposite party No. 2 Sanjeev Kumar and assured him to refund the amount within three to four months but due to his daughter's marriage, the borrowed money could not be returned by the petitioner within time. The petitioner issued a cheque in favour of the opposite party No. 2 on 16.03.2010. Subsequently the opposite party No. 2 told the petitioner that the issued cheque has been mutilated for which the petitioner issued another cheque in favour of the opposite party No. 2 in exchange of the mutilated cheque. The petitioner subsequently detected that the cheque which was returned to him by the opposite party No. 2 was a duplicate colour xerox cheque of the original cheque bearing No. 384812. The petitioner subsequently detected that the cheque which was returned to him by the opposite party No. 2 was a duplicate colour xerox cheque of the original cheque bearing No. 384812. It is the further case of the petitioner that when he received the demand notice from the opposite party No. 2 in respect of bouncing of both the cheques, he lodged a First Information Report on 21.08.2010 relating to fraud committed by the opposite party No. 2 in returning the cheque No. 384812 which was not the original cheque issued by the petitioner but it was a duplicate coloured xerox copy of the said cheque. Since the police did not take any action on the F.I.R., the petitioner filed a complaint petition bearing I.I.C. Case No. 41 of 2010 against the opposite party No. 2 before the learned J.M.F.C., Barbil which was sent to Joda Police Station for registration of the F.I.R. and investigation under section 156(3) of Cr.P.C. and accordingly, Joda P.S. Case No. 177 of 2010 was instituted which corresponds to G.R. Case No. 649 of 2010 pending in the Court of learned J.M.F.C., Barbil. After completion of investigation, charge sheet has been submitted against the opposite party No. 2 and the trial commenced and six prosecution witnesses were examined. In this Misc. Case, the prayer has been made by the petitioner to take the evidence of those six prosecution witnesses examined in G.R. Case No. 649 of 2010 as additional affidavit in the criminal revision petition. Learned counsel for the petitioner placed reliance in case of Zahira Habibulla H. Sheikh Vrs. State of Gujarat reported in (2004) 28 Orissa Criminal Reports (SC) 321 and Ashok Tshering Bhutia Vrs. State of Sikkim reported in (2011) 48 Orissa Criminal Reports (SC) 1060. 3. Mr. Learned counsel for the petitioner placed reliance in case of Zahira Habibulla H. Sheikh Vrs. State of Gujarat reported in (2004) 28 Orissa Criminal Reports (SC) 321 and Ashok Tshering Bhutia Vrs. State of Sikkim reported in (2011) 48 Orissa Criminal Reports (SC) 1060. 3. Mr. Amit Prasad Bose, learned counsel for the opposite party opposed the contentions raised by the learned counsel for the petitioner and contended that the additional affidavit was not on record when the Trial Court passed the impugned judgment on 24.10.2011 and similarly, no steps were taken to adduce any additional evidence before the Appellate Court by invoking its power under section 391 of the Cr.P.C. Therefore, at this stage, this Court should not accept the prayer of the petitioner in taking the evidence of the six prosecution witnesses examined in G.R. Case No. 649 of 2010 pending in the Court of learned J.M.F.C., Barbil particularly when similar prayer made earlier by the petitioner before this Court has been turned down. 4. Section 391 of the Cr.P.C. empowers the Appellate Court to take further evidence if it thinks necessary. The Court shall record its reasons and may either take such evidence itself, or direct it to be taken by the lower Court. Section 401 of the Cr.P.C. which deals with the powers of revision of the High Court states that the High Court may, in its discretion, inter alia, exercise any the power conferred on a Court of appeal by section 391 of Cr.P.C. Therefore, there is no dearth of power with this Court to take additional evidence in its revisional jurisdiction. Law is well settled that whenever the Appellate Court thinks it necessary in the interest of justice to take additional evidence in order to arrive at a just decision of the case or it feels that there would be failure of justice if the additional evidence is not taken, it has to record its reasons and either take such evidence itself or direct it to be taken by the lower Court. The Appellate Court however should not exercise such power to fill up the gaps in the prosecution case or if it feels that it would be prejudicial to the defence of the accused. The Appellate Court however should not exercise such power to fill up the gaps in the prosecution case or if it feels that it would be prejudicial to the defence of the accused. If either of the parties had fair opportunity before the Court below for adducing such evidence and in spite of that they did not avail the same, no such order for adducing additional evidence shall be provided to the parties by the Appellate Court unless the requirement of justice so demands. Therefore, the discretion of the Appellate Court under section 391 of Cr.P.C. either to take further evidence itself or to direct it to be taken by the lower Court should be exercised in a judicious manner where the admission of such further evidence to the Appellate Court's record is considered essential for arriving at the truth of the matter. It applies not only to oral evidence but also to documentary evidence. Such power can be invoked by the Appellate Court on the prayer of either side or even suo motu. The same principle applies to the revisional Court when a party seeks for adducing the additional evidence. In case of Zahira Habibulla H. Sheikh Vrs. State of Gujarat reported in (2004) 28 Orissa Criminal Reports (SC) 321, it is held as follows:- "47. Section 391 of the Code is another salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose, it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court shall direct the taking up of further evidence in support of the prosecution, a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. The appellate Court shall direct the taking up of further evidence in support of the prosecution, a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted 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. 49. 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 when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As reiterated supra, the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions." In case of Ashok Tshering Bhutia Vrs. State of Sikkim reported in (2011) 48 Orissa Criminal Reports (SC) 1060, it is held as follows:- "15. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions." In case of Ashok Tshering Bhutia Vrs. State of Sikkim reported in (2011) 48 Orissa Criminal Reports (SC) 1060, it is held as follows:- "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." In the present case, when the trial was under progress, the petitioner could have proved the FIR dated 31.12.2010 of Joda P.S. Case No. 177 of 2010, which was instituted in pursuance of the complaint petition filed by him against the opposite party No. 2. Similarly, before the Appellate Court, steps could have been taken not only to prove the F.I.R. dated 31.12.2010 but also charge sheet dated 10.12.2011 in Joda P.S. Case No. 177 of 2010. Since the petitioner has not taken any such steps before the appropriate Court and earlier filed a misc. case bearing Misc. Case No. 1020 of 2014 under section 391 read with section 401 of Cr.P.C. for taking additional evidence, which was rejected vide order dated 20.07.2016, in the present scenario, if the evidence of the six prosecution witnesses examined in G.R. Case No. 649 of 2010 pending in the Court of learned J.M.F.C., Barbil is taken into consideration as additional evidence in this revision petition, any observation relating to the acceptability or otherwise of such evidence would cause an effect in the ultimate outcome of G.R. Case No. 649 of 2010. Moreover, out of the six prosecution witnesses examined in G.R. Case No. 649 of 2010, the petitioner has examined two of them including himself as defence witnesses during the trial in I.C.C. Case No. 34 of 2010. Therefore, at this juncture, I am not inclined to accept the prayer made in the Misc. Case. Accordingly, the Misc. Case stands dismissed. Petition Dismissed