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2024 DIGILAW 213 (CHH)

Fagulal Sao, S/o. Sukurram Sao v. Rohit Kumar Tandon, S/o. Darsaram Tandon

2024-03-06

PARTH PRATEEM SAHU

body2024
ORDER : 1. Challenge in this revision is to order dated 27.01.2024 passed by learned Sixth Additional Sessions Judge, Raigarh in Criminal Appeal No.129/2023 whereby learned trial Court has rejected the application submitted by the applicant under Section 391 of Cr.P.C. 2. Learned counsel for the applicant submits that the applicant has extended the hand-loan to non-applicant and to re-pay the loan amount, non-applicant has issued four cheques (subject matter of CRA No.129 of 2023 before the Court below) of different amount of his A/c No.10511321157 bearing cheque no.257753 of Rs.50,000/-, cheque No.257755 of Rs.85,000/-, cheque no.257752 of Rs.85,000/- and another cheque No.257756 of Rs.1 lakh. He contended that the cheque bearing no.257756 issued by the non-applicant was found to be proved by learned Magistrate and other three cheques have not been found to be proved holding that applicant failed to prove that the cheque was deposited in the Bank and returned by the Bank as 'dishonoured' (no return memo was placed on record issued by the bank). He contended that the order passed by learned Magistrate was put to challenge in appeal. During pendency of appeal, application under Section 391 of Cr.P.C. was filed seeking examination of the Bank manager as witness. Application was erroneously rejected. He submits that while rejecting application, purpose of provision under Section 391 of Cr.P.C. is defeated. The applicant ought to have been provided an opportunity to prove his case by examining the Bank Manger as his witness to prove that the cheque issued by the non- applicant was deposited for clearance and it was dishonoured by the Bank. In support of his contention, he places reliance upon the order passed in the case of Govind Chauhan Vs. Sriram Sonboir (CRR No.752 of 2023 and other connected matters) decided on 12.12.2013. 3. Learned counsel for non-applicant opposes the submission of learned counsel for the applicant and submits that learned appellate Court has passed detailed order and has assigned reasons for rejecting application filed by the applicant under Section 391 of Cr.P.C. In its order learned appellate Court has observed that the applicant was provided ten number of opportunities to lead evidence and on the last date fixed for recording of evidence of the applicant on 20.07.2023, the applicant himself closed his evidence. Provision under Section 391 of Cr.P.C. will not be permitted to be used to fill-up lacuna in the criminal case. Provision under Section 391 of Cr.P.C. will not be permitted to be used to fill-up lacuna in the criminal case. It is to be used only in exceptional circumstance. Hence, there is no error in the order passed by learned Court below. In support of his contention, he places reliance upon the decision of Hon'ble Supreme Court in the case of Ajitsinh Chehuji Rathod Vs. State of Gujarat and Anr. (2024 SCC OnLine SC 77). 4. I have heard learned counsel for the parties as also perused the documents enclosed along with revision. 5. Perusal of the impugned order would show that the learned appellate Court observed that the applicant was provided ten opportunities to produce his witness/evidence and on the 10th day fixed for recording of evidence of the applicant i.e. 20.07.2023 on the statement made by the applicant, evidence of the applicant was closed. 6. Provision under Section 391 of Cr.P.C. is extracted below for ready reference:- “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. Perusal of the application does not reflect that the applicant for any unavoidable circumstances was restricted from producing his evidence or for examination of the important witness to prove his case or there is mention of any ground that even after due diligence, applicant could not brought necessary evidence which is necessary to be produced before the Court, escaped. 8. Hon'ble Supreme Court in the case of Rambhau and Another Vs. State of Maharashtra (2001) 4 SCC 759 while dealing with provision under Section 391 of Cr.P.C. observed thus:- "4. 8. Hon'ble Supreme Court in the case of Rambhau and Another Vs. State of Maharashtra (2001) 4 SCC 759 while dealing with provision under Section 391 of Cr.P.C. observed thus:- "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. 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." 9. In case of Ajitsinh Chehuji Rathod (supra), Hon'ble Supreme Court again while dealing with the challenge to rejection of the application under Section 391 of Cr.P.C. has observed thus:- “9. At the outset, we may note that the law is well- settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non- recording of such evidence may lead to failure of justice. x x x x x x 17. Thus, we are of the view that if at all, the appellant was desirous of proving that the signatures as appearing on the cheque issued from his account were not genuine, then he could have procured a certified copy of his specimen signatures from the Bank and a request could have been made to summon the concerned Bank official in defence for giving evidence regarding the genuineness or otherwise of the signature on the cheque. 18. 18. However, despite having opportunity, the accused appellant did not put any question to the bank official examined in defence for establishing his plea of purported mismatch of signature on the cheque in question and hence, we are of the firm opinion that the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf. 10. Reverting back to the facts of the case, it is not disputed by learned counsel for the applicant that that the finding recorded by the appellate Court in the impugned order that the applicant was provided ten opportunities to lead evidence and further considering the ground raised in the application, wherein no exceptional circumstance/ground is pleaded, I do not find any error in the impugned order passed by learned appellate Court rejecting the application under Section 391 of Cr.P.C. 11. For the forgoing discussions, I do not find any error in the order passed by the appellate Court. 12. The revision application being sans merits is liable to be and is accordingly dismissed.