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2022 DIGILAW 27 (UTT)

Anwaar v. State of Uttarakhand

2022-03-02

RAVINDRA MAITHANI

body2022
JUDGMENT : Aggrieved by an order dated 05.08.2021, passed in the Criminal Appeal No. 11 of 2020, State Vs. Anwaar, by the court of Additional District and Sessions Judge, Tehri Garhwal (“the appeal”), the petitioner has filed instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”). 2. The respondent no.2 (the complainant) filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), in the court of Civil Judge (Senior Division)/ Judicial Magistrate, New Tehri, which was registered as Criminal Case No. 114 of 2013, Smt. Rukhsana Vs. State (for short, “the case”). The case was decided on 17.02.2020. The petitioner has been convicted and sentenced under Section 138 of the Act. The petitioner preferred an appeal. During the hearing of the appeal, the petitioner moved an application under Section 391 of the Code for examining three witnesses, namely, Imtiaz, Azim and Imran. This application has been rejected by the impugned order. The Court observed that no reason has been assigned by the petitioner as to why he did not examine these witnesses, during the trial of the case. Aggrieved by it, the petitioner is before this Court. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner would submit that the reasoning for rejection of the application under Section 391 of the Code is not in accordance with law. Learned counsel would submit that with regard to a cheque in question, the petitioner had already repaid Rs.1,30,000/- to the persons, as directed by the complainant. This factum could not be proved during the trial of the case. Therefore, the petitioner moved an application under Section 391 of the Code, which ought to have been allowed, but the court below rejected the application. 5. Learned counsel for the complainant would submit that the petitioner had ample opportunity to reveal the factum of payment of money during the trial of the case, but in his statement under Section 251 of the Code, he did not reveal anything. In his examination under Section 313 of the Code, the petitioner did not give specific dates as to when and to whom the money was paid. There has been immense opportunity to the petitioner to adduce evidence on this aspect. In his examination under Section 313 of the Code, the petitioner did not give specific dates as to when and to whom the money was paid. There has been immense opportunity to the petitioner to adduce evidence on this aspect. Therefore, it is argued that there is no reason to make any interference and the petition deserves to be dismissed. 6. The order impugned has been passed on an application filed under Section 391 of the Code. This section reads as hereunder:- “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 of the Code reveals that additional evidence may be taken at the appellate stage, if the appellate court thinks that additional evidence to be necessary. 8. The impugned order reveals that the application under Section 391 of the Code, filed by the petitioner has been rejected mainly on the ground that the petitioner could not show as to why he did not examine the witnesses during trial. 9. The law mandates that if additional evidence is necessary that may be taken at the appellate stage. The question to be answered is as to whether the additional evidence, which the petitioner proposes to adduce at the appellate stage, is necessary for the just decision of the case? The Court posed this question to the learned counsel appearing for the petitioner. Learned counsel for the petitioner would submit that out of Rs.3,00,000/-, the petitioner had already paid Rs.1,30,000/- under the instruction of the complainant. The Court posed this question to the learned counsel appearing for the petitioner. Learned counsel for the petitioner would submit that out of Rs.3,00,000/-, the petitioner had already paid Rs.1,30,000/- under the instruction of the complainant. The petitioner had also adduced evidence of the witnesses to prove this fact. But, the trial court did not believe the evidence on the ground that the receipts were not filed. It is argued that earlier, the witnesses, who were examined during trial, were the persons, through whom, the money was paid. But, it is argued that now, the petitioner proposes to examine the persons, who received the money or who had witnessed the repayment. It is argued that Imtiaz and Shamim are two witnesses, who are brother and son of the complainant respectively, so the quality of the evidence would be changed. 10. The petitioner had already examined three witnesses in the trial of the case, namely, DW1 Shamim, DW2 Salman Ahmad and DW3 Anwar. The judgment in the case records that in his examination under Section 251 of the Code, the petitioner did not plead guilty and claimed trial. In para 4 of the judgment passed in the case, these facts have been recorded. It does not record that at that stage, the petitioner had revealed that he had repaid the substantial amount of money under the instruction of the complainant. In para 6 of the judgment passed in the case, the statement given by the petitioner at the stage of 313 of the Code has been recorded. According to it, the petitioner at that stage had stated that the cheque was not dishonoured and he had re-paid Rs.1,30,000/- to the complainant. 11. According to the application, which was filed by the petitioner under Section 391 of the Code, on different dates, he had paid total Rs.1,40,000/- as follows:- (i) Rs.40,000/- were paid to Imtiaz, who is brother of the complainant under the instruction of the complainant. It was given in the presence of Shamim. (ii) Rs.50,000/- were paid to Azeem, son of the complainant (it is not recorded as to why money paid to the complainant was paid to Azeem and under whose instruction, it was so paid). It was given in the presence of Shamim. It was given in the presence of Shamim. (ii) Rs.50,000/- were paid to Azeem, son of the complainant (it is not recorded as to why money paid to the complainant was paid to Azeem and under whose instruction, it was so paid). It was given in the presence of Shamim. (iii) Rs.50,000/- was paid to the son of the complainant Azeem (it does not reveal as to why this money was paid to the son of the complainant instead of the complainant). In the house of Shamim. 12. Shamim has already been examined as DW1. According to him, through him, Rs.90,000/- was paid. But, it is not the case in the application under Section 391 of the Code. According to the application, in the presence of Shamim, the money was paid. According to this application under Section 391 of the Code, Rs.1,40,000/- was paid in the presence of Shamim. 13. PW2 Salman Ahmad has also stated about payment of Rs.90,000/- . The petitioner himself has already been examined as DW3 in the case. According to him, he had paid Rs.1,30,000/- and out of it, Rs.90,000/- was given to Shamim. As stated, it is not so recorded in the application under Section 391 of the Code. 14. According to DW3 Anwar, Rs. 40,000/- was paid to the complainant, but it may be noted that in the application under Section 391 of the Code, it is not the case of the petitioner that he himself paid Rs.40,000/- to the complainant. So, it is still not clear as to what the petitioner wants to prove by producing the additional evidence. 15. The trial court did not believe the defence on the ground that no receipts were obtained by the petitioner. The court had observed that, in fact, the complaint was filed in the year 2013 and the alleged payment was made in the year 2019. In such circumstances, the Court observed that it was expected that a person making payment could take any receipt. This Court refrains to make any observation on these findings as to whether they are correct or not because they are impugned in the appeal. 16. The above discussion makes it clear that different stands have been taken with regard to the payment. The petitioner had examined three witnesses to prove the alleged payment made by him. This Court refrains to make any observation on these findings as to whether they are correct or not because they are impugned in the appeal. 16. The above discussion makes it clear that different stands have been taken with regard to the payment. The petitioner had examined three witnesses to prove the alleged payment made by him. The additional witnesses, which the petitioner proposes to examine at the appellate stage are definitely not necessary for the just decision of the case. It is simply multiplication of number of witnesses. Therefore, this Court is of the view that the court below has rightly rejected the application (though, on different grounds). Accordingly, the petition deserves to be dismissed at the admission stage itself. 17. The petition is dismissed in limine.