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2024 DIGILAW 369 (CHH)

Ramesh Kumar Dadsena S/o Babulal Dadsena v. Vidyasagar Ratre S/o Shri Ramratan Ratre

2024-04-26

PARTH PRATEEM SAHU

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ORDER ON BOARD : 1. This petition has been filed by applicant invoking revisional jurisdiction of this Court under Section 397/401 of the Criminal Procedure Code, 1973 (henceforth ‘CrPC’) for setting aside of the order dated 13.3.2024 (Annexure A-1) passed by the learned 1st Additional Sessions Judge, Saraipali, District Mahasamund (CG) in Criminal Complaint Case No.345/2019 whereby the application filed by applicant under Section 391 Cr.P.C. has been rejected. 2. Briefly stated facts of case are that complainant/non-applicant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act of 1881’) alleging dishonour of cheque issued by applicant in favour of non-applicant. Said complaint came to be registered as Criminal Complaint Case No.345/2019 and after due trial, it was ensued in judgment dated 27.2.2013 passed by the learned Judicial Magistrate First Class, Basna convicting and sentencing applicant for the offence punishable under Section 138 of the Act of 1881. Applicant preferred an appeal before the appellate Court challenging said judgment of conviction and order of sentence. During pendency of said appeal, applicant preferred an application under Section 391 CrPC pleading that on the basis of complaint made by non- applicant, police of police station Basna inquired into the matter and recorded statement of witnesses in which they have stated about return of entire amount to complainant, copies of those statements have been obtained by applicant under the Right to Information Act, 2005 and also brought the same to the notice of his counsel but for some unknown reasons, said documents could not be produced before trial Court. Statements of said witnesses are material in the present case and therefore, permission was sought to produce said documents as additional evidence. Non-applicant filed reply to said application denying the averments made therein. Appellate Court, after hearing the parties in the matter, rejected said application vide impugned order holding that applicant failed to offer any cogent explanation for not submitting said documents at an early stage of trial despite having sufficient opportunity. 3. Learned counsel for applicant submits that learned appellate Court committed error in rejecting application filed by applicant under Section 391 CrPC. 3. Learned counsel for applicant submits that learned appellate Court committed error in rejecting application filed by applicant under Section 391 CrPC. He submits that Section 391 of CrPC clearly envisages that appellate Court, if thinks, additional evidence is necessary, shall record the same and necessary document may be taken on record, but the appellate Court without going into the relevancy of the documents rejected the application. He submits that the documents sought to be produced as additional evidence would show that the amount which is alleged to be payable to the complainant, has already been paid by applicant and there was no amount due on the date of filing of application under Section 138 of the Act of 1881. Since the complainant denied having received any amount, the documents which were sought to be brought on record as additional evidence were necessary for disposal of appeal. He next contended that no prejudice is going to be caused to the respondent if the said documents are allowed to be produced as additional evidence, yet the appellate Court has dismissed the application. 4. I have heard learned counsel for the applicant and perused the record. 5. Perusal of the record reflects that during pendency of appeal against conviction, an application under Section 391 CrPC was filed by applicant seeking permission to adduce additional evidence. In Para-6 of said application, it was contended by applicant that the counsel appearing on behalf of applicant was informed about the statements of witnesses recorded during police inquiry and other documents, but the same could not be exhibited during trial for unknown reasons. 6. Section 391 of CrPC reads thus;- “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. (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. A bare reading of Section 391 of CrPC makes it clear that it empowers the appellate Court dealing with an appeal to take further evidence or direct further evidence to be taken by a Court subordinate to it, if he thinks necessary. This power to take additional evidence is with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. 8. Any party can also file an application for taking additional evidence, however it is not to be accepted in routine manner and the applicant has to show that even after due diligence the evidence which is sought to be produced as additional evidence could not be produced or was not within his knowledge earlier. Simply because an omission had taken place during the trial, the power contemplated under Section 391 CrPC for taking additional evidence cannot be exercised by the appellate Court. 9. Section 391 CrPC is akin to the provisions of Order 41 Rule 27 of the Civil Procedure Code, 1908 which lays down following conditions to seek permission for leading additional evidence:- “(i) The evidence sought to be produced by way of additional evidence was refused to be admitted by the trial Court; (ii) The same was not within the knowledge at the appropriate time; (iii) It was the result of some subsequent event.” A plain reading of the above makes it clear that unless and until it is specifically pleaded that in spite of due diligence, the document was not in the knowledge or in possession of the party, he will not be permitted to file an additional evidence at the appellate stage. 10. 10. Recently the Hon'ble Apex Court while considering the object of Section 391 CrPC in its judgment dated 29.1.2024 in SLP (Cri) No.16641/2023, parties being Ajit Sinh Chehuji Rathod vs. State of Gujarat & ors, reported in 2024 SCC Online SC 77 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." (emphasis supplied) 11. In the case of Rambhau and another Vs. State of Maharashtra, reported in (2001) 4 SCC 759 the Hon’ble Supreme Court has observed thus:- “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.” 12. In case of State (NCT of Delhi) vs. Pankaj Chaudhary & ors, reported in (2019) 11 SCC 575 , the Hon’ble Supreme Court has observed as under:- “25…..The power conferred under Section 391 CrPC is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 CrPC. Any material produced before the appellate court to fill-up the gaps by either side cannot be considered by the appellate Court; more so, to reverse the judgment of the trial Court.” 13. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 CrPC. Any material produced before the appellate court to fill-up the gaps by either side cannot be considered by the appellate Court; more so, to reverse the judgment of the trial Court.” 13. In case of H.N. Jagadeesh vs. R. Rajeshwari, reported in (2019) 16 SCC 730 , it was observed as under:- “5. In spite of the aforesaid admitted position, the High Court has allowed the appeal thereby setting aside the acquittal order passed by the trial court and remanded the matter back to the trial court with the direction to permit the respondent to adduce further evidence giving full opportunity to the accused in accordance with law and decide the matter afresh. 6. We are unable to agree with this approach of the High Court, in the facts of this case, which is inappropriate in law. The service of the statutory notice calling upon the drawer of the cheque (after it has been disowned) to pay the amount of cheque is a necessary pre-condition for filing of the complaint under Section 138 of the Act. Therefore, it was incumbent upon the respondent to produce the said statutory notice on record to prove the same as well. In this case, this document was not even filed by the respondent along with the complaint, and the question of proving the same was, therefore, a far cry. In a case like this, we fail to understand as to how the aforesaid omission on the part of the respondent in not prosecuting the complaint properly could be ignored and another chance could have been given to the respondent to prove the case by producing further evidence. It clearly amount to giving an opportunity to the respondent to fill up the lacuna.” (emphasis supplied) 14. From the plain reading of application filed under Section 391 CrPC it is clear that it is the specific case of the complainant/non-applicant herein that he lent Rs.1,47,500/- to applicant from 27.12.2018 to 31.12.2018 for his treatment and against this loan, applicant handed over him cheque. It is defence of accused/applicant herein that he took loan of Rs.1,47,500/- from complainant for his personal need which he repaid in installment at the rate of Rs.15,000/- per month. It is defence of accused/applicant herein that he took loan of Rs.1,47,500/- from complainant for his personal need which he repaid in installment at the rate of Rs.15,000/- per month. Whereas, the documents i.e. statements of witnesses of a police enquiry, sought to be brought on record as additional evidence demonstrate that on 28.5.2019 at about 7:00 p.m. in the evening in the presence of witnesses, applicant repaid the loan amount in cash along with interest i.e. Rs.1,72,500/-. This apart, a perusal of impugned judgment of trial Court reflects that applicant in his statement recorded under Section 313 CrPC has pleaded innocence stating that he has been falsely implicated and cheque in question was given as security during transaction of sale of a car between him and complainant. He has not set up any such defence that the amount involved has already been paid to non-applicant in presence of witnesses etc.. Even, no witness has been cited as a defence witness. Thus, the statements sought to be brought on record as additional evidence are self contradictory to the plea taken earlier, hence, the reason assigned does not appear to be bonafide. 15. Since the applicant’s statement does not inspire confidence as to when and in what manner repaid the loan lent by complainant i.e. either in installments or in lump sum in presence of witnesses, the alleged documents (statements) with regard to repayment of loan, become insignificant warranting exercise of powers under section 391 CrCPC. 16. That apart, the 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. From the contents of the application under Section 391 CrPC, it is clear that the evidence now sought to be produced by way of additional evidence regarding repayment of amount involved in cheque in question, was well within the knowledge of applicant. However, except mentioning ‘for some unknown reason’, applicant has not offered any cogent explanation as to under what circumstances he was prevented from presenting said documents before the trial Court at an early stage. However, except mentioning ‘for some unknown reason’, applicant has not offered any cogent explanation as to under what circumstances he was prevented from presenting said documents before the trial Court at an early stage. Perusal of the impugned judgment of conviction dated 27.2.2023 passed by the trial Court shows that applicant was afforded opportunity to lead his evidence in defence, whatsoever he desired, but he did not produce any of the documents, sought to be produced at the appellate stage, nor made any attempt to examine any of those witnesses. If applicant would have repaid the amount involved in cheque in question before the witnesses, he would have certainly examined said witnesses in his defence at the trial stage itself. Furthermore, application before the appellate Court has also been filed after much delay from filing of appeal. In such a situation, the application under Section 391 CrPC is nothing but appears to be an effort to drag on the proceeding. 17. For the foregoing discussion, in the considered opinion of this Court, the order impugned passed by the appellate Court is just and proper and not deserve for any interference. 18. Consequently, the revision fails and is dismissed.