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Uttarakhand High Court · body

2019 DIGILAW 38 (UTT)

Alka Punj v. State of Uttarakhand

2019-01-09

MANOJ K.TIWARI

body2019
JUDGMENT : MANOJ K. TIWARI, J. 1. This criminal miscellaneous application under Section 482 Cr.P.C. has been filed for quashing the order dated 27.10.2018 passed by 6th Additional District Judge, Dehradun in Criminal Appeal No. 161 of 2016, whereby the application moved by applicant under Section 391 read with Section 311 of Cr.P.C. for taking additional evidence on record has been rejected. 2. It transpires that a complaint under Section 138 of Negotiable Instruments Act was filed by respondent No. 2 alleging that the cheque issued by applicant amounting to Rs.5.50 lac was dishonoured by the Bank. After the trial, Judicial Magistrate IInd, Dehradun convicted the appellant under Section 138 of Negotiable Instruments Act and imposed rigorous imprisonment for a period of one year and directed her to pay compensation to the tune of Rs.6,60,000/- out of which Rs.10,000/- was to go to the State Government as fine. Feeling aggrieved by the said judgment and order passed by learned trial court, applicant filed Criminal Appeal No. 161 of 2016. Before the appellate court, she filed an application under Section 391 read with Section 311 of Cr.P.C. with a prayer that she may be allowed to file report of the handwriting expert, which may be taken on record as additional evidence and the handwriting expert may be examined or in the alternative, an independent handwriting expert may be appointed to examine the deposit slip along with return memo issued by the Bank. 3. Respondent No. 2 filed objection to the application made by the applicant contending that the application has been moved to delay the proceedings; the additional evidence sought to be filed is not relevant and no reason has been shown why the proposed document was not filed before learned trial court and the additional evidence sought to be filed is against the evidence filed by the applicant before the trial court. 4. Learned appellate court rejected the application under Section 391 read with Section 311 of Cr.P.C. vide order dated 27.10.2018 by holding that statement of Yogesh Bhandari, Manager ICICI Bank as D.W.-2 before trial court regarding deposit slip and return memo is sufficient for arriving at a just decision of the case. 5. Heard Mr. Munish Bhardwaj, learned counsel for the petitioner, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the record. 6. 5. Heard Mr. Munish Bhardwaj, learned counsel for the petitioner, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the record. 6. Before proceeding further in the matter, Section 391 of Cr.P.C. which is relevant to the present case, is extracted below:- “391. Appellate Court may take further evidence or direct it to be taken-(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.” 7. A bare perusal of Section 391 (1) of Cr.P.C. reveals that it confers discretion to the appellate court to take additional evidence on record in appropriate cases to arrive at the truth. It is an exception to the normal rule that an appeal should be decided on the evidence which was available before trial court, therefore, the power under Section 391 of Cr.P.C. has to be exercised with caution and circumspection so as to meet the ends of justice. In other words, this power has not to be exercised as a matter of course to fill up the lacuna. Additional evidence should not prejudice either party. Though wide discretion is conferred by the Code, the same has to be exercised judicially and the legislature has put the safety valve by requiring recording of reasons. 8. Bare perusal of the impugned order reveals that the appellate court has declined to exercise its discretion under Section 391 of Cr.P.C. for valid reasons. Applicant has not given any explanation as to why the evidence was not adduced before learned trial court, which is sought to be brought on record as additional evidence at appellate stage. 9. 8. Bare perusal of the impugned order reveals that the appellate court has declined to exercise its discretion under Section 391 of Cr.P.C. for valid reasons. Applicant has not given any explanation as to why the evidence was not adduced before learned trial court, which is sought to be brought on record as additional evidence at appellate stage. 9. Since Section 391 of Cr.P.C. is not meant to fill in the lacuna, therefore, learned appellate court was justified in rejecting the application of the applicant for taking additional evidence on record. 10. In such view of the matter, there is no scope for interference with the appellate court’s order. Accordingly, this criminal miscellaneous application stands dismissed.