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2017 DIGILAW 974 (JHR)

Sidheshwar Mandal v. State of Jharkhand

2017-06-20

ANANDA SEN

body2017
ORDER : 1. The order dated 02.08.2016 passed in Criminal Appeal No.30 of 2014 is under challenge. 2. At the appellate stage, in Criminal Appeal No.30 of 2014, the petitioner filed an application under Section 391 of the Code of Criminal Procedure for adducing additional evidence. 3. A complaint was filed by one Siddheshwar Mandal, the petitioner herein against the opposite party No.2, which was registered as P.C.R. Case No.282 of 2011. The complaint was under Sections 420, 467, 468, 120B/34 of the Indian Penal Code. The sum and substance of the complaint is that the complainant agreed to sell 2 katha 2 dhur land in JB No.79/277 of mouza Madansahi Tapua in favour of Purnima Rai for consideration amount of Rs.1,75,000/-. He executed an agreement to this effect on 05.02.2003. Purnima Rai has paid Rs.1,00,000/- through cheque on 05.02.2003. She paid Rs.30,000/- and again she has paid Rs.20,000/- on 30.08.2003. An endorsement was made in back side of agreement paper relating to receiving of these amounts on various dates. On 19.02.2004 Purnima Rai has paid the final settlement and endorsement was made regarding receipt of this amount by making signature of the complainant Sidheshwar Mandal. Rs.1,75,000/- was paid till 19.02.2004 and nothing was left for payment. On 19.02.2004 Purnima Rai had taken signatures of witness No.2 to 5 on the back side of the agreement paper. On 30.08.2003 it was written that Rs.30,000/- was paid earlier and Rs.1,50,000/- was paid later on and signatures of witnesses were taken on that statements. On 27.02.2004 Purnima Rai made an endorsement on third page of agreement on back side over revenue stamp that Rs.25,000/was paid to Sidheshwar Mandal on 27.02.2004 by cheque No.331873. She has taken signatures of witnesses on the same paper. Complainant knew about these facts when T.S. No.45/10 was filed in court by Purnima Rai in the court of learned Sub JudgeIII. A criminal case was filed being Sahibganj (T) P.S. having G.R. No.393/09 against Sidheshwar Mandal which does not bear any endorsement as mentioned above. By doing so, Purnima Rai has committed offence under Sections 420, 467, 468, 120(B)/34 of the Indian Penal Code. 4. Cognizance was taken under Section 465 of the Indian Penal Code and thereafter charge was framed. The complainant led evidence to prove his case, but, vide judgment dated 26.02.2014, the Trial Court has acquitted the opposite party No.2 from the charges. 4. Cognizance was taken under Section 465 of the Indian Penal Code and thereafter charge was framed. The complainant led evidence to prove his case, but, vide judgment dated 26.02.2014, the Trial Court has acquitted the opposite party No.2 from the charges. Aggrieved by the said judgment, an appeal was filed by the complainant being Criminal Appeal No.30 of 2014. In the said appeal, the petitioner filed a petition under Section 391 of the Code of Criminal Procedure and prayed to file certified copy of an agreement which was marked as 'X' in another G.R. Case No.393 of 2009. The said application was dismissed by order dated 02.08.2016. 5. Learned counsel for the petitioner submits that it is absolutely necessary to file the said documents for just decision of the case. He submits that debarring the petitioner from filing the said documents will cause miscarriage of justice. He further submits that the document was not suppressed willfully, but, it only came to light after the judgment of acquittal dated 26.02.2014 by the learned Court below. 6. Learned A.P.P. opposes the prayer and submits that Section 391 of the Code of Criminal Procedure cannot be used in a routine manner. He further submits that the petitioner has absolutely failed to make out a case under Section 391 of the Code of Criminal Procedure and thus, the appellate Court has rightly passed the impugned order. 7. I have heard the parties and gone through the records of the case. 8. From perusal of the impugned order, I find that the Court below discussed the issue involved and has found that no exceptional circumstances has been brought on record on behalf of the appellant and the petition seeking additional evidence is not in consonance with the deposition of Purnima Rai dated 24.06.2014, which was adduced in G.R. Case No.393 of 2009. Thus, from the finding of the Court below, I find that the Court has felt that additional evidence is not necessary in the instant case. 9. Section 391 of the Code of Criminal Procedure gives power to the appellate Court to take further evidence or direct further evidence to be taken. Thus, from the finding of the Court below, I find that the Court has felt that additional evidence is not necessary in the instant case. 9. Section 391 of the Code of Criminal Procedure gives power to the appellate Court to take further evidence or direct further evidence to be taken. Section 391(1) of the Code of Criminal Procedure provides that in dealing with any appeal, the appellate Court, if it thinks additional evidence is necessary, shall record its reason and may either take evidence itself or direct it to be taken by the Magistrate. If the appellate Court is a High Court then direction can be given to a Sessions Judge or Magistrate for recording additional evidence. Thus, from the aforementioned provision, it is the prerogative of the appellate Court to judge whether it is necessary to record additional evidence. If the Court thinks that it is necessary, then reasons have to be recorded as to why it is necessary. In this case, as seen, the Court has felt that it is not necessary to record additional evidence. This discretion of the Court is based on reasons. Further this Court finds that the appellate Court has held that there is no exceptional circumstance and the deposition of Purnima Rai is not in consonance with the petition. Thus, this Court cannot, in an application under Section 482 of the Code of Criminal Procedure, sit in appeal over the order of the Appellate Court. This Court cannot reaprise or reevaluate the reasons given by the Court, more so when the same is not unreasonable or perverse. Thus, I find no error in the impugned order dated 02.08.2016 passed by the Principal Sessions Judge, Sahibganj in Criminal Appeal No.30 of 2014. Hence, this application stands dismissed.