2021 (11) TMI 445 - HC - Indian Laws

Dishonor of cheque - power of appellate court to allow additional evidence at appellate stage - Discharge of burden to prove payment - HELD THAT - It is well settled principle of law as held by the Hon'ble Supreme Court in the judgment RAMBHAU ANR. VERSUS STATE OF MAHARASHTRA 2001 (4) TMI 937 - SUPREME COURT , that the Appellate Court has wide power under Section 391 Cr.P.C. to allow additional evidence even at an appellate stage subject to the condition that the same is not going to cause any prejudice to the accused or amounts to re-trial or change the nature of the case of the accused or not to fill up the lacuna but to serve the ends of justice - It is also held by the Hon'ble Supreme Court that the Appellate Court can take additional evidence to rectify irregularity committed by the prosecution but not to rectify a defect and lacuna in the prosecution. The same principles of law is applicable for leading the defence evidence. In the instant case though, the initial burden was on the petitioner/complainant to prove the payment and receipt of the part payment, however, the trial Court has put up the onus on the complainant by observing that he has failed to prove his stand by not adducing any cogent evidence. The complainant has also admitted that a repayment of ₹ 11.00 lacs out of total ₹ 35.00 lacs was done by the accused through RTGS, however, the petitioner/complainant did not lead any specific evidence to prove whether the repayment of ₹ 11.00 lacs was against the amount advanced through cheques or through RTGS and the trial Court has wrongly put the onus on the accused whereas it was for the complainant himself to prove this fact while leading the evidence. Petition dismissed.

Summary

Issues:
Setting aside the order allowing additional evidence under Section 391 read with Section 311 Cr.P.C.

Analysis:
The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent. The trial court convicted the accused and imposed a sentence, holding him liable for the offence and ordering compensation. The accused appealed and filed an application for additional evidence under Section 391 read with Section 311 Cr.P.C. The trial court's judgment highlighted the loan amount, cheques issued, and repayment details. The accused failed to provide evidence of RTGs for repayment, and the trial court found his evidence lacking. The lower appellate court allowed the application for additional evidence, focusing on clarifying financial transactions between the parties and the issuance of cheques. The court emphasized the importance of bank statements to establish the debt's discharge. The petitioner argued against the application, citing the trial court's findings and lack of cogent evidence from the accused. However, the High Court noted that allowing additional evidence is permissible under Section 391 Cr.P.C. to serve justice, provided it does not prejudice the accused or change the case's nature.

The High Court reiterated that the burden of proof initially lay with the petitioner to establish payment and receipt, but the trial court shifted the onus due to insufficient evidence. The case revolved around a loan amount of ?80.00 lacs, cheques issued, and partial repayment through RTGS. The petitioner did not present specific evidence to link the repayment to the cheques or RTGS, leading to the trial court's observation of misplaced onus. The High Court upheld the lower appellate court's decision to admit additional evidence, emphasizing the need to clarify the debt's discharge through bank statements. The proposed evidence aimed to aid the court in reaching a definitive conclusion without altering the accused's defense or introducing a new one. The petitioner retains the right to cross-examine witnesses and present their case.

In conclusion, the High Court dismissed the revision petition, finding no merit in challenging the lower appellate court's decision to allow additional evidence. The court emphasized the importance of serving justice and clarifying financial transactions to reach a just decision in the case.