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TMI Blog2021 (11) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- 13. I have heard the rival contention of both the parties and have minutely gone through the contents placed on record by both the parties. In the instant complaint, complainant contended that he has given a loan of ₹ 18,00,000/- to the accused through cheques. In his support, he examined CW1 to CW5 including himself. CW3 during his testimony categorically stated that ₹ 20 lacs were transferred vide two cheques bearing no. 012101 and 012102 of each ₹ 10 lacs from the account of complainant to the account of accused on 28.03.2012. Certified copy of which Ex. P11 Ex. P12. On the perusal of above said documents as well as testimony of bank witness, it is crystal clear that two cheques were duly issued by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ₹ 20 lacs only which were given through cheques. Therefore, the question whether RBL and Rajiv Bansal are one and same person need not to be considered in the present complaint. As far as loan of ₹ 20 lacs is concerned, that is duly proved. 14 15. XXXX XXXX XXXX 16. XXXX. The accused has contended that though he had taken loan of ₹ 20 lacs from the complainant but the same was repaid through RTGs and in cash. However, he did not adduce any document on record by which he could prove the factum of RTGs. He did not depose anywhere that RTGs, if any, was done by him in favour of whom and of what amount. He did not call any single bank witness to prove that alleged transaction. Though, complainant admitted that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing a reply. The Lower Appellate Court vide impugned order dated 22.07.2021, allowed the application filed under Section 391 read with Section 311 Cr.P.C., for additional evidence. The operative part of the said order, reads as under:- 6. The nature of the evidence sought to be produced is documentary. Essentially, the appellant-convict seeks to bring in evidence which might be explanatory of the transactions between the parties. In the initial complaint under Section 138 of NI Act, the respondent-complainant had contended that the convict had taken a friendly loan of ₹ 18 lacs and in discharge of this loan, the three cheques of ₹ 10 lacs, ₹ 5 lacs and ₹ 3 lacs were issued which were later dishonoured. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a part of the respective contentions and those shall be taken up at the time of final disposal of the appeal. It is not that the appellant is taking a new defence. Such suggestions were given during the cross-examination of the complainant. The oversight of the previous counsel or the laxity to bring in affirmative evidence on such aspects cannot impede the right of the appellant to bring in admissible evidence in the shape of bank statements. 7. For the aforesaid reasons, the present application u/s. 391 r/w Section 311 Cr.P.C. filed on behalf of the applicant-accused for additional evidence is hereby allowed. Needless to say that any expression of this order shall not be construed to be opinion of the merits of the appeal. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. (b) In the instant case though, the initial burden was on the petitioner/complainant to prove the payment and receipt of the part payment, however as noticed above, 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. (c) The admitted case of the parties is that the complainant set up his cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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