JUDGMENT : Instant appeal filed under S.378 CrPC lays challenge to judgment dated 30.4.2009 passed by learned Judicial Magistrate First Class, Badsar, Hamirpur, Himachal Pradesh, whereby Pvt. Complaint No. 32-I-2007 titled Sonu Soap Factory v. Smt. Meera Devi, having been filed by the appellant/complainant (hereinafter, ‘complainant’) came to be dismissed on the ground that the complainant has failed to prove by leading cogent and convincing evidence that he is proprietor of M/s Sonu Soap Factory, in whose favour, the cheque was issued by the respondent-accused (hereinafter, ‘accused’). 2. Precisely, the facts of the case, as emerge from the record, are that complainant, which is a proprietorship concern, instituted a complaint under S.138 of the Negotiable Instruments Act, in the competent court of law, through its proprietor, Shri Amar Singh, alleging therein that the accused was doing business of manufacturing soap at her Unit situate in Village Hamout, Post Office Hatwar, Tehsil Ghumarwin, District Bilaspur and she used to take raw material from the complainant. Complainant alleged that on 23.11.2006, it supplied raw material amounting to Rs. 25,782/- through vehicle No. HP-67-614 and the accused, with a view to discharge her liability, issued cheque bearing No. 5346513 dated 22.11.2006 amounting to Rs. 25,782/- drawn on Himachal Pradesh State Cooperative Bank Limited, Bum, Tehsil Ghumarwin, District Bilaspur. However, facts remains that cheque on its presentation, was dishonoured by the Banker of the accused, on account of insufficient funds and returned the same vide memo dated 12.12.2006. It is averred that the complainant sent a legal notice to the accused on 29.12.2006 but yet she failed to make good the payment. Since despite having received legal notice, accused failed to make good the payment to the complainant, complainant was compelled to institute proceedings under S.138 of the Act. Learned trial Court on the basis of evidence led on record by respective parties, dismissed the complaint on the ground that the complainant has not been able to prove his proprietorship qua the concern namely M/s Sonu Soap Factory, to whom accused had allegedly issued cheque in lieu of discharge of her liability. In the aforesaid background, complainant has approached this court in the instant appeal, praying therein to restore his complaint, with the direction to the court below to decide the same on its merits. 3. In the aforesaid background, complainant has approached this court in the instant appeal, praying therein to restore his complaint, with the direction to the court below to decide the same on its merits. 3. During the pendency of the present appeal, complainant also filed CrMP No. 510 of 2022 under S. 391 CrPC, seeking permission to lead additional evidence. Since prayer made in the said application, if allowed, would have a direct bearing on main appeal, application was taken up alongwith main appeal and is now being disposed of vide this judgment. 4. If the complaint filed under S. 138 of the Act is perused in its entirety, this court finds force in the submission of learned counsel for the respondent that, at no point of time, complainant claimed/projected himself to be proprietor of M/s Sonu Soap Factory. Though, cause title of complaint though suggests that the complaint was filed by M/s Sonu Soap Factory through its Proprietor Shri Amar Singh but such fact never came to be pleaded in the complaint. Similarly this court finds that Amar Singh, complainant, while tendering evidence by way of affidavit, again failed to specifically state that he is the proprietor of M/s Sonu Soap Factory, however in his cross-examination, while answering suggestion put to him, that he is not the proprietor of M/s Sonu Soap Factory, complainant categorically claimed himself to be proprietor of M/s Sonu Soap Factory. Material available on record, clearly reveals that the complainant successfully proved on record that the cheque amounting to Rs. 25,782/- issued in favour of M/s Sonu Soap Factory by the accused was returned on account of insufficient funds. Similarly, this court finds that the complainant after having received return memo from the bank, also served legal notice upon the accused calling upon her to make good payment. Similarly, notice was received by the accused, but yet accused failed to make payment to the complainant. However, complaint filed by the complainant was dismissed on the ground that he was not able to prove that he is proprietor of the complainant firm, in whose favour the cheque was issued. 5. Similarly, notice was received by the accused, but yet accused failed to make payment to the complainant. However, complaint filed by the complainant was dismissed on the ground that he was not able to prove that he is proprietor of the complainant firm, in whose favour the cheque was issued. 5. The question, calling for the attention of this Court, in the case at hand is, ‘whether learned court below was justified in dismissing the complaint on the ground that the complainant has not been able to prove his proprietorship qua M/s Sonu Soap Factory, in whose faovour cheque in question was allegedly issued?’ 6. No doubt it was incumbent upon the complainant to prove his proprietorship qua M/s Sonu Soap Factory, especially when cheque was issued in the name of M/s Sonu Soap Factory. Had the accused issued cheque in the name of the complainant, Amar Singh, things would have been different. 7. Though, complainant has claimed that, at the time of filing complaint, he had become proprietor of M/s Sonu Soap Factory, but such fact never came to be proved in accordance with law. Though by way of placing on record registration certificate, Mark A, Amar Singh tried to prove that proprietorship of M/s Sonu Soap Factory was changed in his name in the year 1998, but it is not in dispute that such document was not proved in accordance with law, as such, learned court below rightly ignored the same, while holding that the complainant has not been able to prove that he is the proprietor of the concern namely M/s Sonu Soap Factory. 8. Now to prove said fact, complainant has filed an application under S. 391 CrPC, seeking permission to place on record additional evidence, however, before considering the prayer made therein, it would be apt to take note of S.391 CrPC, which is reproduced herein under: “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. (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.” 9. Careful perusal of the aforesaid provision reveals that appellate court if thinks fit, can always permit a party to lead additional evidence but for that purpose specific reasons are required to be recorded. 10. Though, the learned counsel for the respondent vehemently argued that present application is not maintainable but having perused provisions of S.391 CrPC, this court is not persuaded to agree with learned counsel for the respondent as far as maintainability of the application under S.391 CrPC at this stage, is concerned. But so far contention of learned counsel for the respondent that once this document was in the knowledge of the complainant at the time of filing of complaint, he was under obligation to bring it on record, is concerned, this court finds force in the same. Otherwise also, if complaint under S. 138 is perused in its entirety, though it suggests that the complainant Amar Singh claiming himself to be proprietor of M/s Sonu Soap Factory, filed complaint, but he failed to prove such fact by pleading that in 1998, proprietorship of the firm namely M/s Sonu Soap Factory was changed in his name. Such fact was required to be specifically pleaded in the complaint, as earlier proprietor Shri Kanshi Ram, father of Shri Amar Singh, was alive. Interestingly, though complainant Amar Singh placed registration certificate on record to demonstrate that registration of M/s Sonu Soap Factory stood transferred in his name in the year 1998, but he was unable to prove said fact by leading cogent and convincing evidence. 11. Interestingly, though complainant Amar Singh placed registration certificate on record to demonstrate that registration of M/s Sonu Soap Factory stood transferred in his name in the year 1998, but he was unable to prove said fact by leading cogent and convincing evidence. 11. Since copy of certificate was with the complainant and since he had failed to tender the same in evidence, it is not understood that why he opted not to file an application under S. 311 CrPC, praying therein to recall witness so examined by him to prove the said document. Now after dismissal of the complaint, at appellate stage, it is incumbent upon the complainant to show that due to reasons beyond his control, he was unable to place the document alongwith complaint. Once, factum with regard to possession of document intended to be placed as an additional evidence, in the year 2007, is itself admitted by the complainant, he owes an explanation that why he failed to place the same with the complaint. Though, in the application, filed under S. 391 CrPC, complainant has averred that he had handed over document in question to his counsel but he failed to mention such fact in the complaint and thereafter failed to prove the same in evidence. Moreover, such plea appears to be contrary to record, for the reason that such document was placed on record by the complainant during evidence, but since he failed to get the same exhibited by leading cogent and convincing evidence, same was not exhibited. Even if the explanation rendered by complainant is accepted, that the document intended to be placed on record as additional evidence under S. 391 was misplaced or was not placed on record by counsel, it is not understood how this document appeared at the time of evidence. Even on account of non-exhibition of document, appropriate remedy for the complainant was to file application under S. 311 CrPC, praying to recall the witness to prove the document in accordance with law. 12. Even on account of non-exhibition of document, appropriate remedy for the complainant was to file application under S. 311 CrPC, praying to recall the witness to prove the document in accordance with law. 12. Though perusal of S. 391 nowhere prohibits appellate court to accept document by way of additional evidence, when it is relevant for adjudication of case, but for that purpose, it is necessarily required to be proved by the party seeking to place on record document by way of additional evidence under S. 391 that, such document was not in existence at the time of filing of complaint or leading evidence. Though, this court has no quarrel with the proposition of law that, very purpose and object of S. 391 CrPC is advancement of justice and to do complete justice, but, at the same time, such provision cannot be permitted to be used to fill up lacuna. On account of non exhibition of said document, complaint under S. 138 has been dismissed by learned court below, to the advantage of accused. On account of fault /omission, if any, committed by complainant, a right has accrued in favour of the accused, which lacuna, if, is allowed to be filled up, without there being any plausible explanation, it would be prejudicial to the interest of the accused. 13. Hon'ble Apex Court in Rajeshwar Prasad Misra v. The State of West Bengal and another, AIR 1965 SC 1887 , Abdul Latif and others v. State of Uttar Pradesh, (1978) 1 SCC 566 has held that Code of Criminal Procedure gives power to the appellate court to take an additional evidence, which for the reasons to be recorded, it considers necessary and the Code gives wide discretion to the appellate court to deal appropriately with different cases, but for that, again failure of justice is a condition precedent. Hon'ble Apex Court further clarified that additional evidence must be necessary, not because it would be impossible to pronounce judgment, but there would be failure of justice, without it and thus power must be exercised sparingly and only in suitable cases and additional evidence must not ordinarily be permitted if the party has had a fair opportunity but, has not availed of it, unless the requirement of justice dictates otherwise. In Abdul Latif supra, Hon'ble Apex Court reiterated that additional evidence sought to be led, must serve useful purpose for arriving at a just conclusion in the case. 14. In Zahira Babibullah H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 , Hon'ble Apex Court held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons. Besides this, Hon'ble Apex Court has observed that 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. Hon'ble Apex Court further held that in all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. Relevant paras of above said judgment are as under: “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. 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 can 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. 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 re-iterated 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. 50. In Rambhau and Anr. v. State of Maharashtra ( 2001 (4) SCC 759 ) it was held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons.” 15. In the instant case, very requirement of complainant to file complainant under. S.138 was to place on registration certificate, especially when cheque in question was issued in the name of proprietorship firm M/s Sonu Soap Factory. 16. Though, in the case at hand, complainant claimed himself to be proprietor of M/s Sonu Soap Factory, but he never placed on record the registration certificate nor he said anything specific in evidence by way of affidavit that he is proprietor of M/s Sonu Soap Factory. Since the document was in existence at the time of filing of the complaint, which fact stands established on the perusal of registration certificate dated 3.7.1998, which came to be placed on record as Mark A, nor the complainant at the time of filing application under S. 391 CrPC, has filed affidavit of counsel, to whom document was handed over at the time of filing complaint, to prove the factum with regard to loss, if any, of aforesaid document, no illegality can be said to have been committed by the court below, while passing the impugned order. Otherwise also, aforesaid averment /stand taken in the application may not be available to the complainant, for the reason that such document was though placed on record but was not exhibited at the time of filing of the appeal/during proceedings in the complaint. 17. In view of the detailed discussion made hereinabove and the law taken note of, this court finds no illegality in the judgment passed by learned Court below, which is upheld, as a result whereof the appeal fails and is dismissed alongwith CrMP No. 510 of 2022 and other pending applications.