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TMI Blog2018 (1) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. - Criminal Writ Petition No. 653 of 2016 - - - Dated:- 19-12-2017 - Prakash D. Naik, J. Mr. Fayaz K. Patel, Advocate, for the Petitioner Mr. Anil M. Gaikwad, Advocate for the Respondent JUDGMENT With the consent of both the parties, the petition was heard for final disposal. 2] Rule. Rule made returnable forthwith. 3] The petitioner is the original complainant. The complaint was filed for an offence under Section 138 of the Negotiable Instruments Act before the Court of Chief Judicial Magistrate, Latur which was numbered as STCC No. 719 of 2013. 4] The complaint was filed by the petitioner alleging that the accused and her husband had approached the complainant and demanded hand loan of ₹ 4,00,000/ . Since the petitioner was acquainted with the accused, he had withdrawn the amount from his bank and parted sum of ₹ 4,00,000/ to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since 2012 and that the complainant has suffered financial loss. The Court thereafter, passed an order on 23rd October, 2015 after hearing both the parties. The Court observed that while issuing the notice on 27th August, 2015, the Court had directed the accused to co operate with the Court to decide the appeal within five months. Two months are over and only three months are remaining. If the accused co operate with the Court to decide the appeal finally within three months, the complainant can be asked wait for three months and no prejudice would be caused to him. It was, therefore, observed that in exceptional circumstances, the appellant /accused need not deposit the fine amount, but she has to co operate with the Court in deciding the appeal within three months. 8] In pursuant to the order dated 23rd October, 2015, the respondent preferred an application before the Appellate Court on 19th January, 2016, which was purportedly an application under Section 391 of the Code of Criminal Procedure (for short 'the Cr.P.C.) for recording the additional evidence of the witnesses namely Noorjahan Sayyad, Sikandar Shaikh and Sayyad Yunus Hanif for proper adjudication of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der that the respondent/accused shall co operate in disposal of the appeal and temporary stay the order on depositing fine. The notice was issued to the complainant. Even thereafter the order of stay was continued on the ground that the appeal would be heard within a period of three months thereafter as stated in the earlier order and that no prejudice would be caused to the complainant. The said order was passed taking into consideration that the complainant is a poor lady and is not in a position to deposit the amount. It is, thereafter, according to the petitioner the application for recording additional evidence was preferred which was allowed by the Court. It is submitted that the reasons assigned by the Court in allowing the application under Section 391 of the Cr.P.C. are contrary to law. It is submitted that the respondent had full opportunity to raise whatever defence available to her during the trial. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. She has categorically stated that she does not want to examine herself in support of her defence. Although there was opportunity to the accused to examine defence witnesses, the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with Section 391 of the Cr.P.C., the Appellate Court may take further evidence or direct it to be taken by the Trial Court if it takes additional evidence is necessary. It is, therefore, submitted that the accused be permitted to raise his defence in proper perspective. The cheque has been misused by the complainant. It was deposited on account of different transaction which the accused intends to prove by appropriate defence which was missed out during the trial, but not extraneous to the proceedings. It is, therefore, submitted that the Appellate Court has rightly passed the impugned order. 13] The learned counsel for respondent relied upon the decision of the Supreme Court in the case of Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others reported in AIR 2004 SUPREME COURT 3114(1). 14] On hearing both the parties and scanning the material on record what appears is that the respondent was charged for commission of offence under Section 138 of the Negotiable Instruments Act. The case of the complainant is that hand loan was advanced to the accused in a sum of ₹ 4,00,000/ . In discharge of the liability, the accused, according to the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entitled to prefer such an application and the Appellate Court has mechanically allowed the same. It has to be noted that the respondent had preferred an application for stay on depositing fine amount. The Appellate Court granted interim stay and directed the appellant to co operate with the hearing of appeal within five months. Thereafter, the petitioner opposed the said relief. However, the Court proceeded to pass an order on 23rd October, 2015, that in view of the earlier order two months have already passed and it is only question of three months in which the accused is required to co operate in disposal of appeal and no prejudice would be caused, if the sentence is suspended. Surprisingly, to prolong the hearing of appeal application was preferred by accused on 19th January, 2016 under Section 391 of the Cr.P.C. It is, therefore, apparent that the intention of the respondent is to delay the hearing of the appeal, the accused cannot be allowed to fill up the lacuna. There are no valid grounds to allow additional evidence. 16] Section 391 of Cr.P.C. reads as follows : '391. Appellate Court may take further evidence or direct it to be taken. (1) In dealing wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasons to be recorded, that additional evidence is necessary. Since Section 391 of Code is an exception to the general rule that an appeal should be decided on evidence which was before trial Court, power under the Section has to be exercised with caution and circumspection so as to meet the ends of justice and not as a matter of course. 21] In Rambhau and Anr.Vs. State of Maharashtra, 2001 CriLJ 2343, the Supreme Court has held that, the object of Section 391 is not filling lacuna, but to subserve the ends of justice. An admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Though wide discretion is conferred by the Court, the same has been exercised judicially and the legislature had put the safety valve by requiring recording of reasons is a condition precedent for exercise of power under Section 391 of the Code and an order bereft of reasons would tantamount to non application of mind, rendering the exercise of power under the Section, bad in law. 22] The learned counsel for the respondent/accused has placed strong reliance on the decision of the Supreme Court in the case of Zahira Habibulla H.Sheikh (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intent to delay the proceedings before the Appellate Court. 23] The complainant did not step into witness box. The complainant did not examine any witness, therefore, 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. Section 391 is not incorporated with intent to exercise the power enshrined therein when the party failed to lead the evidence before the Trial Court. In the circumstances, the order passed by the Appellate Court is required to be set aside and pass the following order : ORDER 1. Criminal Writ Petition No. 653 of 2016 is allowed. 2. The impugned order dated 4th March, 2016 passed by the learned Assistant Sessions Judge, Latur below Exh. 18 in Criminal Appeal No. 85 of 2015 is quashed and set aside. 3. The petition stands disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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