2020 (2) TMI 1648 - HC - Indian Laws

Dishonor of Cheque - Whether the application moved by the accused under Section 391 of Cr.P.C., to lead additional evidence is maintainable or not? - HELD THAT - 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 justice . 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. 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. 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 - Revision dismissed.

Summary

Issues Involved:
1. Maintainability of the application under Section 391 of Cr.P.C.
2. Justification for allowing additional evidence under Section 391 of Cr.P.C.
3. Appellate court's decision to reject the application under Section 391 of Cr.P.C.

Issue-wise Detailed Analysis:

1. Maintainability of the application under Section 391 of Cr.P.C.:
The court examined whether an application moved by the accused under Section 391 of Cr.P.C. to lead additional evidence is maintainable. The court referred to various judgments, including *Ashok Tshering Bhutia v. State of Sikkim* and *N. Saminathan v. M.P. Thangavelu*, which establish that additional evidence at the appellate stage is permissible in case of a failure of justice. The primary object of Section 391 Cr.P.C. is to prevent a guilty man’s escape or to vindicate an innocent person wrongfully accused. The court concluded that the legislative intent behind Section 391 is to empower the appellate court to ensure justice is done between the parties, and thus, the application filed by the revisionist/accused under Section 391 of Cr.P.C. is maintainable.

2. Justification for allowing additional evidence under Section 391 of Cr.P.C.:
The court highlighted that the power to allow additional evidence must be exercised sparingly and only in exceptional cases where it serves the interests of justice. The revisionist initially moved an application under Section 311 of Cr.P.C., which he later amended to Section 391 of Cr.P.C. The court noted that the revisionist failed to plead the necessary ingredients of Section 391 Cr.P.C. There was no averment that the specimen signature sought was necessary for the case or that not summoning it would lead to a failure of justice. The court emphasized that the revisionist had ample opportunity to adduce evidence during the trial but failed to do so. The plea regarding forged signatures was raised for the first time in the appeal, and no evidence was produced before the appellate court to justify the exercise of jurisdiction under Section 391 Cr.P.C.

3. Appellate court's decision to reject the application under Section 391 of Cr.P.C.:
The court reviewed the appellate court's decision to reject the application under Section 391 Cr.P.C. It was observed that the revisionist had full opportunity to present his defense during the trial but did not utilize it. The appellate court found no merit in the revisionist's application as it lacked necessary pleadings and evidence. The court concluded that the appellate court did not commit any illegality, perversity, or jurisdictional error in rejecting the application under Section 391 Cr.P.C. The revision was dismissed as there was no merit in the arguments presented by the revisionist.

Conclusion:
The court upheld the appellate court's decision, emphasizing that the power to allow additional evidence under Section 391 Cr.P.C. must be exercised cautiously and only in exceptional cases. The revisionist's failure to present necessary evidence and pleadings during the trial and appeal stages justified the rejection of his application. The revision was dismissed, affirming the appellate court's order.