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2023 (6) TMI 365 - HC - Indian LawsDishonour of Cheque - Rejection of application under Section 391 of the Code of Criminal Procedure (Cr.P.C.) - application seeking permission to produce on record documents and to cross-examine the complainant - HELD THAT - In the case of Bipin Shantilal Panchal Vs. State of Gujarat and another 2001 (2) TMI 590 - SUPREME COURT , the Hon ble Apex Court has held that, when any objection is raised to the admissibility of any material or the document or the evidence, the Court shall record such objections and to decide those at the stage of final judgment. In the case of Rajendra Prasad Vs. Narcotic Cell Through its Officer-In-Charge, Delhi 1999 (7) TMI 707 - SUPREME COURT , the Hon ble Apex Court has observed that in the Criminal Court the defence would be entitled to recall witness under Section 311 of the Cr.P.C. It is held that, the lacuna in prosecution is not to be equated with the fallout or an oversight committed by a public prosecutor during trial. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. It is thus held that the power to cross-examine any witness is plenary power and that can be exercised at any stage of the trial if Court finds the same to be necessary for a just decision of the case. In the case of Maria Margarida Sequeria Fernandes and ors. Vs. Erasmo Jack de Sequeria (Dead) through L.Rs. 2012 (3) TMI 594 - SUPREME COURT , the Hon ble Apex Court has held that, in the trial it is against the case when the suit was filed for possession and the matter went to the Hon ble Apex Court. It is held in the said case that truth must be foundation of justice and the judges should not sit merely as umpire during trial, but play active role to find out truth. It was case arising out of civil suit. This Court finds that, the application under Section 391 of the Cr.P.C. needs to be considered in the facts of the case. The principle underlying under Section 41 Rule 27 need not be considered while considering the application under Section 391 of the Cr.P.C. It also requires a consideration as to what is the nature of the evidence that is sought to be produced in the appeal. It is not a case of the petitioner in this case that he discovered some new fact or the document or material only after filing of the appeal. It is also not a case that in spite of due diligence he could not get the material during the course of trial. In this petition there are two prayers (i) to allow to exhibit the documents which are already produced on record and (ii) to allow him to cross-examine the complainant on the aspect of payment of amount. While considering both these aspects this Court finds that, so far as exhibiting the documents is concerned even the respondent has accepted that the documents are admitted by both the parties and those can be read into evidence. So far as the second aspect that is the cross-examination of the complainant, it is the case of the complainant that by way of cross-examination now the petitioner wants to set up altogether a new defence. The defence in the trial court is that the cheques were stolen whereas, from the application now it appears that the petitioner wants to make out a defence that the amount of the cheque is already paid and on that aspect he wants to examine the respondent No. 2. This is also recorded by the learned Sessions Judge - The application therefore is not mere application for correcting the inadvertent mistake. So far as exhibiting of the document is concerned, the Court has already observed that the said documents would be considered. This Court thus finds that no case is made out to exercise the jurisdiction by allowing the petition. There is no merit in the petition and the same deserves to be dismissed - Petition dismissed.
Issues involved:
The judgment deals with the rejection of an application under Section 391 of the Code of Criminal Procedure by the learned Additional Sessions Judge. The main issue revolves around the petitioner's appeal seeking permission to produce documents on record and to cross-examine the complainant in a case under Section 138 of the Negotiable Instruments Act. Details of the Judgment: Application under Section 391 of Cr.P.C.: The petitioner, an accused in a case under Section 138 of the Negotiable Instruments Act, filed an application seeking permission to produce documents on record and to cross-examine the complainant. The petitioner argued that the documents, though not exhibited, were admitted by both parties and should be considered. The Additional Sessions Judge rejected the application, citing that the petitioner had ample opportunity for cross-examination during the trial and allowing further cross-examination would fill a gap in the defense. The judge referred to a previous Supreme Court judgment emphasizing the need to exercise powers under Section 391 to ensure justice for the accused. The application was rejected on the grounds that no prejudice would be caused to the respondents if further cross-examination was not allowed. Arguments and Counter-arguments: The petitioner's advocate argued that the documents were admitted and should be exhibited, emphasizing the interest of justice. However, the respondent's advocate opposed the application, claiming that allowing further cross-examination would enable the petitioner to change the defense presented in the trial court. The respondent relied on a previous case where a similar application was rejected to prevent the accused from setting up a new defense during the appeal stage. Legal Precedents and Court's Decision: The petitioner's advocate cited various judgments, including those emphasizing the need to record objections to admissibility at the final judgment stage and the entitlement of the defense to recall witnesses under Section 311 of Cr.P.C. The court considered previous cases where the power to cross-examine witnesses was to be exercised with caution. Ultimately, the court found that the petitioner's application did not present a case for exercising jurisdiction, as allowing further cross-examination would introduce a new defense contradicting the one presented in the trial court. The court concluded that there was no merit in the petition, and it was dismissed. Conclusion: The High Court of Bombay, in its judgment, discharged the rule, finding no merit in the petition seeking permission for additional evidence and cross-examination. The court's decision was based on the principle of not allowing a change in defense strategy during the appeal stage, especially if it contradicts the defense presented in the trial court.
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