2018 (10) TMI 1972 - HC - Indian Laws

Dishonor of Cheque - insufficient of funds - Seeking production of additional evidence - typographical error or not - Sections 391 and 482 of the Code of Criminal Procedure, 1973 - HELD THAT - This Court notices that from the beginning the case of the original complainant in the complaint lodged under Section 138 of the NI Act is of his having lent a sum of Rs.20/- lakh to the applicant-accused. It is also his demand in the demand notice, which is a mandatory requirement prior to filing of the complaint under Section 138 of the NI Act, that the amount of Rs.20/- lakh was lent to the applicant-accused, which has not been returned and when the cheque was given and the same was deposited, it was dishonored for want of sufficient funds. The demand notice was replied by the applicant on 25.04.2014, wherein, he has allegedly stated that the amount lent was Rs.40/- lakh. It is required to make a mention, at this stage, that the complainant-opponent No.1 in his deposition has once again stated that the amount lent was Rs.20/- lakh. It is also necessary to refer to the cross-examination of the complainant, where, he has stated that the amount was lent in the year 2012. It is the categorical case of the applicant-accused that there is categorical return of the amount by him by way of cheque and the said sum of Rs.4.09/- lakh (rounded off) with contemporaneous documents has been held by the trial Court to have been proved - The trial Court simply record the said application and vide Exhibit-43, the closure pursis of the applicant-accused is accepted, stating that he did not want to adduce any further evidence either in writing or orally. This Court notices that the respondent-accused, of course, had an opportunity to get the said documents exhibited - Matter remanded back to the trial Court concerned, which shall complete this process within a period of EIGHT WEEKS from the date of receipt of a copy of this order and once such a procedure is over, it shall send back the entire record to this Court to proceed further with the main appeal - application allowed.

Summary

Issues Involved:
1. Application under Sections 391 and 482 of the Code of Criminal Procedure, 1973.
2. Production of additional evidence (letter dated 19.05.2014).
3. Discrepancy in the amount stated due (Rs.40 lakh vs. Rs.20 lakh).
4. Trial Court's handling of the additional evidence.
5. Acquittal of the applicant-original accused.
6. Legal provisions and precedents concerning additional evidence and fair trial.

Detailed Analysis:

1. Application under Sections 391 and 482 of the Code of Criminal Procedure, 1973:
The applicant sought the production of additional evidence under Sections 391 and 482 of the Code of Criminal Procedure, 1973, specifically a letter dated 19.05.2014, which aimed to correct a typographical error in an earlier letter dated 25.04.2014. The error in the earlier letter incorrectly stated the amount due as Rs.40 lakh instead of Rs.20 lakh.

2. Production of additional evidence (letter dated 19.05.2014):
The original complainant filed a complaint due to the dishonor of a cheque for Rs.20 lakh. The applicant-accused had replied to the demand notice, mistakenly stating the amount as Rs.40 lakh. The applicant sought to replace this reply with the corrected letter dated 19.05.2014. The trial court recorded the documents but did not exhibit them formally.

3. Discrepancy in the amount stated due (Rs.40 lakh vs. Rs.20 lakh):
The complainant consistently maintained that the amount lent was Rs.20 lakh. The trial court considered the evidence and acquitted the applicant-accused on the grounds that there was no legally enforceable debt of Rs.20 lakh on the date of the cheque issuance. The applicant-accused's subsequent reply aimed to clarify this discrepancy.

4. Trial Court's handling of the additional evidence:
The trial court recorded the application and the documents but did not formally exhibit them. The court mentioned in the Rojnama that the documents were accepted but did not provide exhibit numbers. The applicant-accused did not further pursue the exhibition of these documents and instead tendered a closing pursis.

5. Acquittal of the applicant-original accused:
The trial court acquitted the applicant-accused, noting that the complainant's case involved lending Rs.20 lakh and receiving partial repayment. The court found no legally enforceable debt of Rs.20 lakh at the time of the cheque issuance. The applicant-accused's request to exhibit the corrected reply was seen as an attempt to fill a lacuna.

6. Legal provisions and precedents concerning additional evidence and fair trial:
The court considered Sections 391 and 465 of the Code, which allow appellate courts to take additional evidence if necessary for justice. The court cited precedents such as 'RAJESWAR PRASAD MISRA VS. STATE OF WEST BENGAL AND ANOTHER', 'STATE OF GUJARAT VS. MOHANLAL JITAMALJI PORWAL AND ANOTHER', and 'RATTIRAM AND OTHERS VS. STATE OF MADHYA PRADESH THROUGH PI'. These cases emphasized the necessity of additional evidence for fair trial and justice, even if there were procedural lapses or delays.

Conclusion:
The court allowed the application for adducing additional evidence, noting that the interest of justice required giving the applicant-accused an opportunity to prove the corrected reply. The court remanded the matter to the trial court for this limited purpose, directing it to complete the process within eight weeks and permitting the prosecution to lead further evidence if necessary. The trial court was instructed to send back the entire record to the High Court after completing this procedure.