2022 (7) TMI 1111 - HC - Indian Laws

Dishonor of Cheque - rebuttal of fresh evidence to rebut the reasons given in the judgment by the trial court and for just adjudication of the appeal filed by the Petitioner - opportunity to rebut preponderance of presumption of a liability in a complaint filed under section 138 of the Negotiable Instruments Act, 1888 - HELD THAT - The object of judicial administration is to secure ends of justice. The courts exist for rendering justice to the people. Chapter XXIX of the Code deals with Appeals . Section 391 of the Code empowers the Appellate Court to take further evidence or direct it to be taken. The relevant words incorporated in section 391(1) are if it thinks additional evidence to be necessary which implies necessary for deciding the appeal to secure ends of justice and there are no fetters on the power under Section 391 of the Code. The legislative intent in enacting Section 391 is to empower the appellate court to see that justice is done 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 such power must be exercised only in suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. The Supreme Court again in Rambhau and another V State of Maharashtra, 2001 (4) TMI 937 - SUPREME COURT had noted the power of the Appellate Court under section 391 of the Code and observed that there is available a very wide discretion in the matter of obtaining additional evidence in terms of section 391 of the Code. However additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. The petitioner wants to file contain documents to establish monetary transactions in regard to a chit fund between him and the respondent no 2. The trial court in final judgment did not believe the defence of the petitioner that cheque was given to the uncle of the respondent no 2 by giving detailed reasons. The appellate court in impugned judgment also observed that the documents are hand written notes and not signed by anyone and the appellant would not be able to prove handing over the cheque in question in the year 2004 to the respondent no 2 on the strength of these unsigned documents. The appellate court by giving appropriate reasoning rightly disallowed prayer of the petitioner to place these documents as additional evidence. The petitioner also did not put forward cogent reasons for placing documents pertaining to his catering business. The nature of business being carried by the appellant does not have any relevance in context of present dispute between the respondent no 2 and the petitioner. The appellate court rightly observed that surety bond sought to be proved would only show that the respondent no 2 was aware about catering business of the petitioner and ITR of the petitioner does not appear to be relevant. The documents sought to be produced on record as additional evidence are not necessary to pronounce judgment and there would not be failure of justice if these documents are not allowed as additional documents. If the application under section 391 of the Code is allowed it would result in retrial of the case. The petitioner initiated legal proceedings for filing additional evidence at much belated stage with intention to delay final disposal of appeal. The appellant has not filed these documents at the earliest point of time. The petitioner was aware of these documents and in possession of these documents when the respondent no 2 filed the complaint under section 138 of the Negotiable Instruments Act, 1888 - The application under section 391 of the Code is after thought and is filed to protract the appeal and fill up lacunae and for extraneous circumstances. The decision of the trial court would not be changed even if the these documents are received as additional evidence and taken into consideration as the trial considered the defence of the petitioner in detail and not accepted by giving detailed and cogent reasons. The appellate court rightly dismissed the application under section 391 of the Code by considering every legal and factual position and appropriately observed that application have been moved only to delay the disposal of the appeal. There is no legal or factual infirmity in the impugned order which cannot be interfered - Petition dismissed.

Summary

Issues Involved:
1. Legality of the order dismissing the application under Section 391 of the Code of Criminal Procedure, 1973.
2. Relevance and admissibility of additional evidence in the appellate stage.
3. Justification for the appellate court's decision to reject the birth certificate and other documents as additional evidence.

Issue-wise Detailed Analysis:

1. Legality of the Order Dismissing the Application Under Section 391 of the Code of Criminal Procedure, 1973:
The petitioner challenged the order dated 02.07.2019, which dismissed his application under Section 391 of the Code for placing additional evidence on record. The appellate court dismissed the application, stating that it was moved only to delay the disposal of the appeal. The court concluded that the additional evidence was not necessary for deciding the appeal and there would be no failure of justice without it. The Supreme Court's precedents, including Rajeswar Prasad Misra V State of West Bengal and another, AIR 1965 SC 1887, and Rambhau and another V State of Maharashtra, (2001) 4 SCC 759, were cited to emphasize that additional evidence must be necessary to avoid a failure of justice and should not be used to delay proceedings.

2. Relevance and Admissibility of Additional Evidence in the Appellate Stage:
The petitioner sought to introduce documents such as the birth certificate of his son, documents related to his catering business, and records of a chit fund committee. The appellate court found that these documents were either irrelevant or could have been produced during the trial. The court noted that the birth certificate was not submitted during the trial, and the petitioner did not provide any reason for this omission. The court also highlighted that DW2 had admitted the catering services were provided for the birthday function, making the birth certificate irrelevant. The surety bond and ITR were deemed not pertinent to the case, and the handwritten notes related to the chit fund were considered unreliable and unsigned.

3. Justification for the Appellate Court's Decision to Reject the Birth Certificate and Other Documents as Additional Evidence:
The appellate court provided detailed reasoning for rejecting the additional evidence. It noted that the birth certificate was not necessary to prove the defense, as DW2 had already admitted the catering services. The surety bond and ITR were found to be irrelevant, and the handwritten notes related to the chit fund were not credible. The court emphasized that allowing the additional evidence would result in a retrial and delay the appeal's final disposal. The petitioner was aware of these documents during the trial but did not present them, and the application under Section 391 was viewed as an afterthought to fill gaps in the defense.

Conclusion:
The appellate court dismissed the application under Section 391 of the Code, finding no legal or factual infirmity in the impugned order. The court concluded that the additional evidence was not necessary to avoid a failure of justice and that the petitioner's application was intended to delay the appeal. The petition was dismissed, and pending applications were disposed of.