Ramesh Kumar vs Sarita Sarawagi

These two Revisions are preferred against the common order dated 12.10.2021 passed by the 2nd Additional Sessions Judge, Durg, District Durg whereby the application filed under Section 391 Cr.P.C in respective pending Criminal Appeals No.57/2021 and 56/2021 arising out of judgment of conviction and order of sentence dated 25.01.2021 passed by the JMFC, Durg, District Durg in respective Complaint Case Nos.7326/2015 and 7325/2015 under Section 138 of the Negotiable Instruments Act has been dismissed.

Shri Sahu, learned Counsel for the Applicant submits that the impugned order is bad in law, perverse as during the pendency of the trial before the JMFC, the Applicant has cited the evidence of the Income Tax Officer, Bhilai as witness No.2 and the Court below has also directed to examine the said witness, who was called through bailable warrant as the case of the complainant was based on the income tax documents and in her deposition, she has stated that she is not an income tax payee whereas she has filed a balance sheet which was not audited by any competent Chartered Accountant. He further submits that without affording a proper opportunity to the defence, the matter was closed and the judgment of conviction was passed. He further submits that considering the aforesaid facts, the appellate Court ought to have allowed the application under Section 391 Cr.P.C in the interest of justice and prays to set aside the impugned order, thereby allowing the Revisions.

On the other hand, Ms. Singhivi, learned Counsel for the Non-Applicant supported the order impugned and submits that the order passed by the Court below in dealing with the scope of Section 391  Cr.P.C is well merited and does not call for any interference.

Heard learned Counsel for the parties and perused the documents annexed with the Revision.

In the matter of Brig. Sukhjeet Singh (Retd.) MVC vs. State of Uttar Pradesh & Others reported in (2019) 16 SCC 712, the law relating to Section 391 Cr.P.C has been dealt with and the relevant portion of para 24 is quoted below for ready reference:-

“24. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:-

“8. ……………………………….Since a wide discretion is conferred on appellate courts, the limits of that courts’ jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.

Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if was possible) to list here. We do not propose to do what the legislature has refrained  from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise.”

In the matter of Ashok Tshering Bhutia vs. State of Sikkim reported in (2011) 4 SCC 402, the object of Section 391 Cr.P.C has been highlighted at para 29 as under:-

“29. 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 the 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 normal proof for the prosecution is necessary.”

Reverting back to the facts of the present cases, the learned appellate Court, after taking into consideration the defence taken by the accused and further considering all the aspects and the scope of Section 391 CrPC, rejected the said application.

In view of above, considering the aforesaid principles laid down in the matters of Brig. Sukhjeet Singh (Retd.) MVC vs. State of Uttar Pradesh & Others and Ashok Tshering Bhutia vs. State of Sikkim (supra), this Court does not find any error in the order impugned, which is well merited and does not call for any interference.

Accordingly, the instant Revisions are dismissed.