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2024 DIGILAW 295 (RAJ)

Pushkar Lal v. Narayan Lal Dangi

2024-02-16

MANOJ KUMAR GARG

body2024
ORDER : 1. The present revision petitions under Section 397/401 Cr.P.C have been filed against the order dated 25.01.2024 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Udaipur whereby, the application preferred by the petitioner under Section 391 Cr.P.C. for adducing evidence was dismissed. 2. Brief facts of the case are that the respondent lodged a complaint under Section 138 of the Negotiable Instruments Act, against the petitioner, whereupon a case bearing no. 16532/2015 came to be registered against him before the learned Special Judicial Magistrate No. 1 (N.I. Act Cases), Udaipur. Thereafter, during the course of trial, the complainant-respondent in his cross-examination stated that his family had sold certain lands, in lieu of a consideration of Rs. 21,00,000/-, out of which a sum of Rs. 10,00,000/- was given to the accused-petitioner. Thereafter, the accused-petitioner preferred an application under Sections 91 and 311 Cr.P.C. to bring on the record the respondent's bank statements for the year 2012-2013 and the sale deed of the lands in question. The learned Court below partly allowed the application vide order dated 19.01.2021, granting the petitioner liberty to produce the bank statements of respondent for year 2012-13, and sale deed of land in question at the stage of his defence and respondent will also have right to cross-examination. 3. Feeling aggrieved by the aforesaid order, the petitioner preferred criminal misc. petition before this Court being S.B. Criminal Misc. petition No. 8166/2022. The said misc. petition came to be dismissed by co-ordinate Bench of this Court vide order dated 20.12.2022. 4. Subsequently, on 13.01.2023, the petitioner filed an application under Section 391 Cr.P.C. with the prayer to summon and take the copy of registry on record. However, the trial court rejected the said application filed by the petitioner vide order dated 08.02.2023. Feeling aggrieved by the said order, the petitioner preferred misc. petition being S.B. Criminal Misc. petition No. 1882/2023. However, during pendency of the criminal misc. petition, the petitioner came to be convicted vide order dated 20.09.2023 and aforesaid criminal misc. petition was withdrawn. 5. At the appellate stage, the petitioner preferred an application under Section 391 Cr.P.C. for summoning the copy of registry of the land sold by the respondent. The said application filed by the petitioner came to be dismissed by the appellate court by way of impugned order dated 25.01.2024 while imposing a cost of Rs.5,000/- upon the petitioner. 5. At the appellate stage, the petitioner preferred an application under Section 391 Cr.P.C. for summoning the copy of registry of the land sold by the respondent. The said application filed by the petitioner came to be dismissed by the appellate court by way of impugned order dated 25.01.2024 while imposing a cost of Rs.5,000/- upon the petitioner. 6. Counsel for the petitioner submits that the appellate court has committed grave error of law in dismissing the application filed by the petitioner under Section 391 Cr.P.C inasmuch as the document is vital for just decision of the case. It is argued that the petitioner has raised question with regard to financial capacity of the complainant and therefore, it is essential to bring on record the copy of registry of land sold by the complainant. It is prayed that dismissal of the application under Section 391 Cr.P.C to bring on record essential piece of evidence, will result into grave injustice to the petitioner and therefore, the same is liable to be allowed. 7. Per contra, learned Public Prosecutor and learned counsel for the respondent supported the impugned order and argued that the learned Court below while partly allowing the application vide order dated 19.01.2021, granting the petitioner liberty to produce the bank statements of respondent for year 2012-13, and sale deed of land in question at the stage of his defence and respondent will also have right to cross-examination. However, despite ample opportunities, the petitioner failed to produce the said document and now after conclusion of trial, at the appellate stage, the petitioner is seeking to produce the said documents only with an intention to delay the matter. Therefore, the appellate court has rightly dismissed the application filed under section 391 Crpc which does not call for any interference from this Court. 8. I have considered the rival contentions of the parties and carefully gone through the documents on record. 9. At the outset it is relevant to discuss section 391 of CrPC which is quoted herein-below: “391. Appellate Court may take further evidence or direct it to be taken. 8. I have considered the rival contentions of the parties and carefully gone through the documents on record. 9. At the outset it is relevant to discuss section 391 of CrPC which is quoted herein-below: “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.” 10. The reading of Section 391 Crpc, so also proposition of law as laid down by the Hon'ble Supreme Court clearly leads to form an opinion that the legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the parties 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 allowing further evidence under Section 391. However, this power has to be exercised sparingly and in exceptional cases where the court is satisfied that directing additional evidence would serve the interest of justice. In the case in hand, the learned Court below partly allowed the application filed by the petitioner vide order dated 19.01.2021 and granted liberty to the petitioner produce the bank statements of respondent for year 2012-13, and sale deed of land in question at the stage of his defence. Feeling aggrieved by the aforesaid order, the petitioner preferred criminal misc. petition before this Court being S.B. Criminal Misc. petition No. 8166/2022. The said misc. petition came to be dismissed by co-ordinate Bench of this Court vide order dated 20.12.2022. Feeling aggrieved by the aforesaid order, the petitioner preferred criminal misc. petition before this Court being S.B. Criminal Misc. petition No. 8166/2022. The said misc. petition came to be dismissed by co-ordinate Bench of this Court vide order dated 20.12.2022. However, the petitioner failed to produce the aforesaid documents at the stage of his defence and now at this belated appellate stage, the petitioner is seeking to produce the documents. 11. Recently the Hon'ble Apex Court while considering the object of section 391 Crpc in the case of Ajitsinh Chehuji Rathod v. State of Gujarat and Anr. (SLP(Crl.) No(s). 16641 of 2023) dated 29.01.2024 has observed as under: “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.” 12. Thus, in order to exercise power contemplated under section 391 of Crpc, the appellate court must be satisfied that taking of additional evidence is necessary. The court should not only consider whether the accused had reasonable opportunity of defending himself by adducing the proposed additional evidence, the court should also consider the question whether the additional evidence proposed to be adduced does have any relevancy. 13. Considering all the facts and circumstances of the case, this court is of the opinion that the petitioner had filed the application under section 391 Crpc as an afterthought and only with an intention to delay the disposal of appeal. Thus, the appellate court has not committed any illegality, perversity or jurisdictional error in rejecting the application under section 391 Crpc. The revision petition being bereft of merit is hereby dismissed. 14. Stay petition is also dismissed.