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2018 (1) TMI 743 - HC - Indian LawsOffence under Section 138 of the Negotiable Instruments Act - deposit of cheque by way of security - admission of additional evidence - Held that - the Appellate Court if it thinks additional evidence is necessary, shall record its reasons and may either take such evidence itself or direct it to be taken by the trial Court - The Appellate Court allowed the said application on the application of respondent and more particularly on the basis of the observations made by the Trial Court while convicting the appellant. Thus, respondent/appellant intends to controvert the observation made by the Trial Court while convicting the respondent by adducing the purported evidence. The application was not within the spirit and scope of Section 391 of the Cr.P.C. The accused did not enter into witness box nor she intended to examine any witness after her statement under Section 313 of the Cr.P.C. The question of recording additional evidence cannot be allowed as a routine manner. The person who wants to lead additional evidence has to establish his case that at the relevant time, he or she did not get opportunity to lead evidence or there should be sufficient cause for leading additional evidence - In the present case, in her statement under Section 313 of Cr.P.C. specifically the accused refused to examine himself or any witness. The application is, therefore, not bonafide. Petition allowed.
Issues Involved:
1. Validity of the complaint under Section 138 of the Negotiable Instruments Act. 2. Legality of the trial court's conviction and sentencing. 3. Suspension of sentence and bail during the appeal. 4. Application for additional evidence under Section 391 of the Code of Criminal Procedure (Cr.P.C.). 5. Justification of the appellate court's decision to allow additional evidence. Detailed Analysis: 1. Validity of the Complaint under Section 138 of the Negotiable Instruments Act: The petitioner, the original complainant, filed a complaint alleging that the accused and her husband demanded a hand loan of ?4,00,000. The petitioner provided the amount, and the accused issued a cheque dated 13th February 2013, which was dishonored due to the account being closed. Despite a demand notice, no payment was made, leading to the filing of the complaint on 20th April 2013. 2. Legality of the Trial Court's Conviction and Sentencing: The trial commenced, and the evidence was recorded. The trial court convicted the accused under Section 138 of the Negotiable Instruments Act, sentencing her to two months of simple imprisonment and a fine of ?4,10,000. The fine, upon realization, was to be given to the complainant per Section 357(1)(b) of the Cr.P.C. 3. Suspension of Sentence and Bail During the Appeal: The accused appealed the conviction and sought suspension of the sentence. The appellate court granted bail on executing a personal bond of ?15,000 with a surety bond of the same amount. The court directed the accused to cooperate in deciding the appeal within five months and issued a notice to the complainant regarding the stay of the fine amount. 4. Application for Additional Evidence under Section 391 of the Cr.P.C.: The accused filed an application under Section 391 of the Cr.P.C. to record additional evidence from three witnesses. The petitioner opposed this, arguing that the accused had multiple opportunities to present evidence during the trial but chose not to. The appellate court allowed the application, noting that the trial court had observed the accused's failure to examine witnesses in support of her defense. 5. Justification of the Appellate Court's Decision to Allow Additional Evidence: The appellate court's decision to allow additional evidence was challenged by the petitioner. The court noted that Section 391 of the Cr.P.C. allows the appellate court to take additional evidence if necessary, but this power should be exercised with caution. The court found that the accused's application was an attempt to fill gaps in her defense and delay the proceedings. The appellate court had mechanically allowed the application without sufficient justification. Conclusion: The High Court quashed the appellate court's order allowing additional evidence, emphasizing that Section 391 of the Cr.P.C. should not be used to fill lacunae in the defense case. The appellate court's decision was found to be contrary to the principles of law, and the petition was allowed, setting aside the order dated 4th March 2016.
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