2003 (2) TMI 557 - HC - Indian Laws

Summary

Issues Involved:
1. Invocation of Section 391 of the Code of Criminal Procedure, 1973.
2. Rebuttal of presumption under Sections 138 and 139 of the Negotiable Instruments Act.
3. Consideration of additional evidence at the appellate stage.
4. Alleged abuse of procedural law and miscarriage of justice.

Issue-wise Detailed Analysis:

1. Invocation of Section 391 of the Code of Criminal Procedure, 1973:
The applicant sought to invoke Section 391 to lead additional evidence at the appellate stage. The Sessions Court rejected this application, leading to the present challenge. The applicant argued that the appellate court should exercise its power under Section 391 to allow him to rebut the presumption under Section 139 of the Negotiable Instruments Act by examining himself and presenting further evidence.

2. Rebuttal of presumption under Sections 138 and 139 of the Negotiable Instruments Act:
The applicant contended that there was no consideration for the cheques issued, thus no legally enforceable debt existed. The trial court convicted the applicant under Section 138, sentencing him to one year of rigorous imprisonment and a fine of Rs. 5,000, with an additional compensation of Rs. 1,00,00,000 to the complainant. The applicant's defense was that the payment was contingent upon the transfer of shares, which had not occurred, justifying his instruction to the banker to stop payment.

3. Consideration of additional evidence at the appellate stage:
The applicant argued that the Supreme Court's decisions in Hiten Dalal's case and K.N. Bina v. Muniyappan necessitated leading evidence to rebut the presumption under Section 139. The applicant emphasized that the presumption could not be rebutted merely by documents but required proof through testimony. The applicant was ready to subject himself to cross-examination to establish his defense.

4. Alleged abuse of procedural law and miscarriage of justice:
The applicant claimed that the rejection of his application by the Sessions Court was unjust, as it did not consider whether additional evidence was necessary to determine the truth and serve justice. The applicant argued that the failure to allow him to present additional evidence would result in a miscarriage of justice, as he would be convicted based on a technicality without a fair opportunity to present his defense.

Judgment Analysis:
The court held that no case was made out for interfering with the Sessions Court's order. It was noted that the Supreme Court's decisions cited by the applicant did not introduce new legal principles but reiterated existing standards. The court emphasized that Section 391 should be exercised with caution and only to meet the ends of justice, not to fill in lacunae in the evidence.

The applicant had multiple opportunities during the trial to present his defense but chose not to. The court observed that the applicant's current attempt to lead additional evidence appeared to be an effort to set up a new defense, which was not permissible. The court found that allowing such applications could lead to a flood of similar requests, potentially delaying and subverting justice.

Ultimately, the court rejected the application, stating that the applicant's failure to present his defense during the trial could not be remedied at the appellate stage under Section 391. The court directed that the observations made in the judgment should not influence the hearing of the appeal.

Conclusion:
The application under Section 391 of the Code of Criminal Procedure, 1973, was rejected. The court held that the applicant had not demonstrated a valid reason for leading additional evidence at the appellate stage and that the principles of justice and fair play did not justify such an exercise in this case. The appeal would proceed without considering the additional evidence sought by the applicant.