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2023 DIGILAW 1580 (RAJ)

Banna Lal Bhambhi v. Chandra Kanta Nenawati

2023-08-22

FARJAND ALI

body2023
ORDER : Farjand Ali, J. The legality correctness and propriety of the order dated 28.03.2023 passed by the learned Additional Sessions Judge (Women Atrocities cases), Bhilwara in Criminal Appeal No.27/2020 has been challenged by the accused-appellant before this court whereby the application filed by the petitioner under Section 391 Cr.P.C. has been dismissed. 2. Heard learned counsel for the petitioner as well as learned counsel for the respondent and gone through the order dated 28.03.2023 as well as the document purportedly sought to be taken on record during the course of appeal. 3. It is not a disputed fact that the petitioner was convicted for committing an offence under section 138 of the N.I. Act and aggrieved by that, he preferred an appeal which is pending before the learned court below. 4. During the course of the appeal, the petitioner moved an application under Section 391 of the Cr.P.C. along with certain documents with the prayer to take the same on record. It was contended that the document was a receipt executed in between the parties and was having a direct nexus with the issue pending before the Court of appeal. Another document is the reply of the notice dated 02.04.2013 given by the petitioner to the respondent in connection with the notice sent to him. Indisputably, both the documents pertain to the transaction involved in the appeal. 5. It is nigh-well settled that whenever it is felt essential for the justified disposal of the case that the evidence, oral or documentary, be called or recalled or additionally adduced for the purpose of just decision of the case, the same can be done since the ultimate object of the court is to impart justice. Only the relevancy of the documents is to be seen along with the admissibility of the same. A critical appreciation or assessment of documents is not required. However, it should have a direct nexus with the fact in issue involved either in the trial or during the course of the appeal. Hon'ble the Supreme Court in the case of Jahira Habibulla H. Sheikh & Ors. v. State of Gujarat reported in AIR 2004 SC 346 has propounded and enunciated the law on this subject and this court is aptly guided by this judgment. 6. Hon'ble the Supreme Court in the case of Jahira Habibulla H. Sheikh & Ors. v. State of Gujarat reported in AIR 2004 SC 346 has propounded and enunciated the law on this subject and this court is aptly guided by this judgment. 6. In light of the above, the instant revision petition deserves to be allowed and accordingly, the learned court of appeal is directed to take on record the receipt executed between the parties and the reply of the notice dated 02.04.2013 submitted along with the application under Section 391 Cr.P.C. and the same may be taken into account while hearing the appeal. He may be permitted to lead evidence in this regard if he moves an application and where-after the learned Court of Appeal would exercise its discretion as contemplated under Section 386 of the Cr.P.C. Needless to say that the opponent has an absolute right to refute and rebut the evidence additionally adduced on behalf of the petitioner party and in the event any such application is moved, the learned judge shall entertain the same and the only requirement would be to see the relevancy and admissibility of the documents for a just decision of the case.