Anshu Jain vs State Of Uttarakhand & Another

Lok Pal Singh, J

This criminal revision is directed against the order dated 15.03.2018 passed by Additional District Judge, Kotdwar District Garhwal, in Criminal

Appeal No.25 of 2016, whereby the application filed by the revisionist under Section 391 of Cr.P.C. has been dismissed.

Factual matrix of the case are that the respondent no.2 filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter to be

referred as the Act) against the revisionist in the court of Addl. Chief Judicial Magistrate, Kotdwar District Pauri Garhwal, which was registered as

Criminal Complaint Case No.316 of 2013. The trial court, vide judgment and order dated 05.07.2016, convicted the revisionist under Section 138 of the

Act and sentenced him to undergo rigorous imprisonment for a period of one year and also directed him to deposit fine of Rs.6,00,000/-. Feeling

aggrieved, the revisionist preferred appeal before the Sessions Judge, Pauri Garhwal being Criminal Appeal No.25 of 2016. During the pendency of

appeal, the revisionist filed an application under Section 311 of Cr.P.C. on the ground that neither he has issued the cheque in question nor the said

cheque bears his signatures. It was also stated that after his statements were recorded under Section 313 of Cr.P.C. before the trial court he tried to

give evidence but the trial court rejected his application vide order dated 24.06.2016 thereby closing his opportunity to lead evidence. It was also stated

that during the pendency of appeal, he enquired from the bank as to whether the signatures on the cheque bears his signatures, it was informed to him

that the signatures in the cheque in question are different. He, thus, prayed that the specimen signature be obtained from the bank and be sent to the

handwriting expert for verification. Subsequently, the revisionist moved another application and prayed to amend the Section of the application as

Section 391 of Cr.P.C. instead of Section 311 of Cr.P.C. Additional District Judge, Kotdwar, Garhwal, acceded to the said request of the revisionist

and decided to dispose of the application u/s 391 of Cr.P.C. and after hearing the parties and on perusal of papers on record, learned Judge, dismissed

the application vide order dated 15.03.2018 with the observation that a written report was submitted by Arvind Kumar Jain on 25.08.2012 at P.S.

Kotdwar stating that his bag has been lost somewhere wherein there were some important documents like passport, driving license, cheque book, pan

card, etc. and there were also some cheques related to his son’s account in Canara Bank but the applicant has not produced any documents along

with the application so as to prove that actually his bag a lost on 25.08.2012.

Initially this Court has passed an order dated 10.10.2019 directing the trial court not to pronounce the judgment till the next date of listing.

Thereafter, this Court appointed Mr. Aditya Singh, Advocate as amicus curiae to the assist the Court on the issue “as to whether an application of

the convict/appellant is maintainable to adduce the additional evidence in an appeal?â€​

Heard Mr. Sudhir Kumar, learned counsel for the revisionist, Mr. Sandeep Tandon, Deputy Advocate General for the State of Uttarakhand and mr.

D.C.S. Rawat, learned counsel for respondent no.2 as well as Mr. Aditya Singh, learned Amicus Curiae.

On the issue as to whether the application moved by the accused under Section 391 of Cr.P.C. to lead additional evidence is maintainable or not,

Mr. Aditya Singh, learned Amicus Curaie has cited some following judgments:

i) Ashok Tshering Bhutia v. State of Sikkim, 2011 (4) SCC 402, paras-28, 29, 30, 31 and 32

Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and

only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend

upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play,

justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.

The primary object of the provisions of Section 391 CrPC is the prevention of a guilty man's escape through some careless or ignorant action on

part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the

circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. Rajeswar Prasad

Misra v. State of W.B., 1965 AIR(SC) 1887, Ratilal Bhanji Mithani v. State of Maharashtra, 1971 AIR(SC) 1630 R, ambhau v. State of Maharashtra,

2001 AIR(SC) 2120, Anil Sharma v. State of Jharkhand, 2004 AIR(SC) 2294, Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 4 SCC 15 8and

Manu Sharma v. State (NCT of Delhi), 2010 AIR(SC) 2352.

This Court in State of Gujarat v. Mohanlal Jitamalji Porwal, AIR 1987 SC 1321 dealing with the issue held as under:

….To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. 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. The community or the State is not

a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of

the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is

committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for

the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in

an evenhanded manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage

done to the national economy and national interest.

In Rambhau v. State of Maharashtra, (2001) 4 SCC 759, a larger Bench of this Court held as under: (SCC p. 762, para 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 subserve 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.

In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in

exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to

have formal proof of the documents, etc. just to meet the ends of justice. However, the provisions of Section 391 CrPC cannot be pressed into service

in order to fill up lacunae in the prosecution case.

ii) N. Saminathan v. M.P. Thangavelu, AIR Online 2019 Mad 2, para 24, 27, 28 and 29

“24. Section 391 of Cr.P.C. 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. But simply because an omission had taken place during the trial, the power contemplated under Section 391 of Cr.P.C. for

taking additional evidence cannot be exercised by the appellate Court. In order to exercise such a power, the appellate Court must be satisfied that

taking of additional evidence is necessary. While considering the question as to whether taking of additional evidence in the appellate stage is

necessary, the Court should not forget the principle that the parties who could have adduced such evidence in the trial stage, should not be allowed to

fill up the lacuna by adducing additional evidence in the appellate stage, as a result of afterthought. At the same time, when a request comes from the

accused, the Court should also consider the question whether he 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 or whether

the prayer for permission to adduce evidence has been made only as an attempt at vexation to fish out of troubled waters. The main aspect to be

considered by the appellate Court dealing with the prayer for permission to adduce additional evidence shall be, whether the person seeking such

permission could have adduced the proposed additional evidence before the trial Court itself.

When the plea of the petitioner is that cheque was given to Nalinam Finance as a security for the deposit collected by Nalinam Finance, it is the

bounden duty of the petitioner to prove the same by examining the partners of Nalinam Finance. The reception of additional evidence can be entrained

when there is likelihood of failure of justice. It is obvious that the cardinal principle of the Indian Evidence Act is that the best evidence has to be

brought in.

This court is satisfied that the petitioner has made out a case for taking additional evidence in the appellate stage under section 391 of Cr.P.C. The

appellate Court has not properly adverted to the essential ingredient of Section 391 of Cr.P.C. “if it thinks additional evidence to be necessaryâ€.

These words in the Section contemplates a wide power to the appellate Court to weed out the infirmities and irregularities. Considering the facts and

circumstances of the case, this Court is of the view that in order to render complete justice, it is just and necessary to allow the petitioner to lead

additional evidence and also marking of documents.

For the reasons stated above, this Court comes to the conclusion that the petitions filed by the petitioner before the appellate Court seeking to

adduce evidence on his behalf and also permission to examine additional witness viz., Palaniammal and mark certified copy of Form-A deserve to be

allowed. Instead of appellate Court itself taking evidence of the petitioner and additional evidence on his side, this Court deems it convenient and

appropriate to direct the trial Court to record the evidence of the petitioner and the additional evidence and submit the same to appellate Court for

reference in the appeal.â€​

Learned counsel for the revisionist would also place reliance on the judgment of Hon’ble Apex Court rendered in the case of Rambhau & Anr.

vs. State of Maharashtra, 2001 (3) Supreme 544 and State of Gujarat v. Mohanlal Jitamalji Porwal, AIR 1987 SC 132,1 which are referred in the

decision of Ashok Tshering Bhutia (supra) which this Court has already extracted above.

Section 391 of Cr.P.C. would also be apt to discuss here, which is quoted hereinbelow:-

“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.â€​

The reading of Section 391 of Cr.P.C. as well as the law laid down by the Hon'ble Supreme Court in the aforesaid judgments 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.

But, it is also clear that such power must be exercised “sparingly†and only in “exceptional suitable cases where the court is satisfied that

directing additional evidence would serve the interests of justiceâ€. That being the position, this Court is of the view that the application filed by the

revisionist/accused under Section 391 of Cr.P.C. is maintainable. Now, this Court has to see whether the appellate court has committed illegality in

rejecting the said application.

In the case at hand, initially the revisionist had moved an application under Section 311 of Cr.P.C. which the revisionist, by way of another

application, prayed to be read as moved under Section 391 of Cr.P.C. This Court has carefully perused the said application. The revisionist has failed

to even plead the necessary ingredients of Section 391 Cr.P.C. There is no averment in the application that the document i.e. specimen signature

sought to be relied upon by the revisionist is necessary in the present case. Further, there is no pleading that not summoning the specimen signatures

from the bank for verification by handwriting expert in the appeal would lead to failure of justice.

That apart, a perusal of record reveals that the revisionist had full opportunity and he was given sufficient time to adduce evidence but despite

ample opportunities he did not lead any evidence in defence whereafter his opportunity was closed by the trial court. What is more evident is that the

revisionist did not take such plea in the statement recorded u/s 313 of Cr.P.C. that the signatures on the cheque in question are forged, and for the

very first time by way of application, the revisionist raised this plea in appeal; no evidence was produced by the revisionist before the appellate court

which may be taken on record by the appellate court so as to exercise its jurisdiction u/s 391 of Cr.P.C.

Considering all the facts and circumstances of the case, this court is of the considered view that the revisionist had not filed any additional

evidence by moving an application under Section 391 Cr.P.C. Though he could not succeed in this effort but he became successful in delaying the

disposal of appeal. In my considered view, the appellate court has not committed any illegality, perversity or jurisdictional error in rejecting the

application u/s 391 Cr.P.C. There is no merit in the revision. Same is hereby dismissed.