Judgment Mr. Harpreet Singh Brar, J. The present petition is preferred against the impugned order dated 18.11.2015 passed by learned Additional Sessions Judge, Jalandhar vide which application filed by the petitioners under Section 391 Cr.P.C. to adduce additional evidence in Criminal Appeal bearing No. 29883 of 2013 titled as ‘Ashok Kumar Monga & Anr v. State of Punjab’ was dismissed. FACTUAL BACKGROUND 2. The facts, briefly, are that FIR No. 456 dated 12.12.2003 under Section 420, 120-B IPC was registered against the petitioners at Police Station Division No. 6, Jalandhar on written complaint moved by respondent No. 2 and Jaskirat Singh to Senior Superintendent of Police, Jalandhar. It was alleged that property measuring 6 marla, situated at Cool Road, Jalandhar, was purchased by respondent No.2-Harpreet Singh, Jaskirat Singh and petitioner No. 2-Vijay Kumar jointly. However, the sale deed was executed only in the name of petitioner No. 2. Thereafter, written agreement dated 14.01.1992 were drawn, stating the interests of the complainants and the same was duly signed by petitioner No. 1, who happens to be the brother of petitioner No. 2. Petitioner No. 2 also executed two agreements dated 14.01.1992 in favour of respondent No. 2 and Jaskirat Singh respectively, where he agreed to sell 2 marlas each to them in exchange of full consideration amount. 3. Petitioner No. 2 along with these agreements also executed Power of Attorney in favour of persons of choice of the complainants respectively. The agreements dated 14.01.1992 and the Power of Attorneys were duly signed by petitioner No. 1 as the attesting witness. Subsequently, on 29.09.1997, petitioner No. 2 gave his Power of Attorney with regard to the disputed property to petitioner No. 1. Petitioner No. 1 further gave the Power of Attorney to one Harmit Singh son of Assa Singh on 08.10.1997. Thereafter, in connivance with each other, the petitioners sold the disputed property to one Dr. Vasudev, wife of petitioner No. 1 and Harbans Singh Chandi for an amount of Rs. 22,00,000/-. 4. After assessing the material on record, learned Judicial Magistrate Ist Class, Jalandhar convicted the petitioners for committing an offence under Section 406 IPC vide judgment dated 14.08.2012 and sentenced them as follows: Ashok Kumar Monga (Petitioner No.1) Under Section 406 IPC Rigorous imprisonment 1000/- of 1 year Fine of Rs. 22,00,000/-. 4. After assessing the material on record, learned Judicial Magistrate Ist Class, Jalandhar convicted the petitioners for committing an offence under Section 406 IPC vide judgment dated 14.08.2012 and sentenced them as follows: Ashok Kumar Monga (Petitioner No.1) Under Section 406 IPC Rigorous imprisonment 1000/- of 1 year Fine of Rs. 1000/- In default of  fine, rigorous imprisonment of 1 month Vijay Kumar Mehta (Petitioner No. 2) Under Section  406 IPC Rigorous  imprisonment of 1 year Fine of Rs. 1000/- In default of fine, rigorous imprisonment of 1 month 5. Aggrieved by the judgment of conviction, the petitioners preferred an appeal before Additional Sessions Judge, Jalandhar. An application was filed by the petitioners before the learned lower appellate Court to prove an agreement dated 16.07.2002, which was dismissed vide impugned order dated 18.11.2015. CONTENTIONS 6. Learned counsel for the petitioner inter alia contends that learned Additional Sessions Judge, Jalandhar has dismissed the application filed by the petitioner under Section 391 Cr.P.C. vide order dated 18.11.2015 without appreciating the settled law on the subject that the appellate Court has a very wide power in the matter of obtaining additional evidence. He relies upon judgments passed by Hon’ble Supreme Court in Rambhau vs. State of Maharashtra, 2001(2) RCR (Criminal) 721 and Zahira Habibulla H. Sheikh and another vs. State of Gujrat and others, 2004(2) RCR(Criminal) 836. 7. The agreement dated 16.07.2002 was not in the notice of the petitioners and as such the same could not be produced during trial and it was found lying in the store room. While issuing notice of motion, the following order was recorded:- “xx Challenge in this petition, filed under Section 482 Cr.P. C. is to order dated 18.11.2015, passed by learned Additional Sessions Judge, Jalandhar, whereby an application moved by the petitioner for leading additional evidence in terms of Section 391 Cr.P. C. was dismissed. Learned counsel, inter alia, contends that the dismounts proposed to be produced during trial of the appeal were not in the notice of the petitioner and, as such, the same could not be produced during trial. Learned counsel, inter alia, contends that the dismounts proposed to be produced during trial of the appeal were not in the notice of the petitioner and, as such, the same could not be produced during trial. He further submits that the legal proposition decided by Hon’ble the Supreme Court in the matter of Rajvinder Singh vs. State of Haryana, 2016(1) RCR(Crl) 170, would not apply to the facts and circumstances of the present case since existence of the documents to be produced in additional evidence during pendency of the appeal were not in the knowledge of the petitioner during the trial. Notice of motion for 04.03.2016. In the meantime, learned appellate Court shall not finally decide the appeal.” 8. Per contra learned counsel representing respondent No. 2 submits that the petitioners has moved second application under Section 391 Cr.P.C. Earlier application was moved in order to prove the civil dispute and present application is only filed to delay the matter and respondent No. 2 has specifically denied the existence of any such agreement dated 16.07.2002. The objection with regard to the admissibility of carbon copy of the agreement is also taken. OBSERVATION AND ANALYSIS 9. Having heard learned counsel for the parties and after perusing the record, it transpires that the petitioner has filed the application under Section 391 Cr.P.C. for proving an agreement dated 16.07.2002 on the ground that the said agreement was not traceable when the trial was going on. The statement of the petitioner before the trial Court under Section 313 Cr.P.C. was recorded on 13.09.2011 and thereafter availed as many as 27 effective opportunities to lead his defence evidence. Even the appeal against his conviction before the learned trial Court under Section 406 IPC was pending for the last more than three years, when the petitioner filed application under Section 391 Cr.P.C. The petitioner has not mentioned as to when the carbon copy of the agreement dated 16.07.2002 was found which was allegedly lying in the store room. 10. The petitioner was given full opportunity to lead his defence and he has not made a whisper with regard to existence of any agreement between the parties. No reason has been assigned in the application for delay in making the prayer under Section 391 Cr.P.C. Neither any date is mentioned when the petitioner found the photocopy of the agreement dated 16.07.2002 lying in the store. 11. No reason has been assigned in the application for delay in making the prayer under Section 391 Cr.P.C. Neither any date is mentioned when the petitioner found the photocopy of the agreement dated 16.07.2002 lying in the store. 11. Section 391 Cr.P.C. reads as follows:- “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.” 12. The Hon’ble Supreme Court has examined scope of Section 391 Cr.P.C. in Rambhau’s case (supra) and it was held that these provisions are being in nature of exception, as such it has to be exercised with circumspection in order to meet the ends of justice. Following was observed: “3. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependent upon the fact situation of the matter and having due regard to the concept of fair play and justice, well-being of the society. 4. Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the Civil Procedure Code.” 13. The Hon’ble Supreme Court in Zahira Habibulla H. Sheikh’s case (supra) has further examined the nature and scope of the powers under Section 391 Cr.P.C. and it was held that the power under Section 391 Cr.P.C. enables the appellate Court to exercise wide discretion but the same can not be utilized for filling up any lacuna and it must be exercised with great care. It was observed as follows: 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. 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. 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. 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.” 14. The power under Section 391 Cr.P.C. is akin to the power under Order XLI Rule 27 of the Code of Civil Procedure, 1908 and such power is to be exercised sparingly in a suitable case and additional evidence can not be tendered as a matter of right at the appellate stage. The power under Section 391 Cr.P.C. is akin to the power under Order XLI Rule 27 of the Code of Civil Procedure, 1908 and such power is to be exercised sparingly in a suitable case and additional evidence can not be tendered as a matter of right at the appellate stage. Only after satisfying the evidence sought to be brought on record as additional evidence is ‘essential’ for the just decision of the case and such discretion can be exercised and it must be based on sound judicial principles and the discretion under the provisions can not be exercised to fill up gaps and lacunae in the evidence. 15. The Hon’ble Supreme Court in Brigadier Sukhjeet Singh (Retired) MVC vs. State of Uttar Pradesh and others, (2019) 16 SCC 712 has held that the expression “if it thinks, additional evidence to be necessary” provided under Section 391(1) Cr.P.C. would mean necessary for deciding the appeal and such evidence is necessary to secure the ends of justice and relying upon Rambhau’s case (supra) a caveat was put for the guidance of the Court that additional evidence can not and ought not to be taken to cause any prejudice to the accused and it can not be used as disguise for a re-trial or to change the nature of the case. 16. Even otherwise in the absence of primary evidence the photocopy of agreement dated 16.07.2002, the execution of which has been specifically denied by respondent No. 2 would not be admissible as secondary evidence. The petitioner has not laid down any foundational evidence for seeking to produce the carbon copy of agreement dated 16.07.2002. The Division Bench of this Court in Bharat Dixit v. Usha Dixit, 2023(4) R.C.R. (Civil) 39 has laid down the parameters for adducing secondary evidence when the original is not available. 17. Moreover, mere production of document can not be held to be due proof of its contents. A two Judge Bench of the Hon’ble Supreme Court in Narbada Devi Gupta vs. Birendra Kumar Jaiswal and another, 2003 (8) SCC 745 , speaking through Justice D.M. Dharmadhikari, held as follows:- “16. ...The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. ...The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue...” 18. The lower appellate Court has taken note of the fact that more than three years elapsed from the date of institution of appeal and the application filed by the petitioner under Section 391 Cr.P.C. is merely a ploy to delay the hearing of the appeal. 19. The petitioner has failed to project the desirability and necessity of producing the carbon copy of agreement dated 16.07.2002 being essential for the just decision of the case. The petitioner has rather failed even to establish how this document would be relevant for the decision of the appeal. 20. No material infirmity could be pointed out by learned counsel for the petitioner in order dated 18.11.2015 (Annexure P-1) passed by lower appellate Court. CONCLUSION 21. No ground for interference is made out in the order dated 18.11.2015 passed by learned Additional Sessions Judge, Jalandhar, therefore, the present petition is dismissed.