9911796707
TMI Blog2022 (6) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... at the photostat copy of the cheque was indeed found while dealing with the case documents. Meaning thereby, while perusing the documents pertaining to the subject prosecution. Secondly, the nature of the documents sought to be adduced by way of additional evidence also assumes importance. A photostat copy by its very nature is vulnerable to allegations of manipulation. Different considerations come into play when a copying process in itself ensures correctness of copy's contents qua the original. In the absence of any contemporaneous material in the nature of acknowledgment or otherwise, a plea that a photostat copy of the instrument in question was found after about 9 years of its execution to bolster up the defence that when the original instrument was delivered, it was in a state, which the photostat suggests, cannot be readily acceded to. In the case at hand, if the petitioner is allowed to lead the evidence, as proposed, it has the propensity to reopen the entire trial, partaking the character, the aspect of the date on which the subject cheque was payable. The learned Additional Sessions Judge committed no error in disallowing the applicant to lead additional e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instrument was rendered void. It was alleged that the complainant had changed the date from '7-2-2008' to '7-12-2008' by inserting the figure '1' before the figure '2'. The accused had examined two hand-writing experts. A private hand writing expert, namely Mr. Kaushik, gave an opinion that the figure 1 in the month column of the date on which the cheque appeared to be payable was inserted before the figure 2 to make it payable on '7-12-2008' instead of '7-2-2008'. The learned Magistrate was, however, not persuaded to give primacy to the evidence of Mr. Kaushik to that of the Government hand-writing expert, who had expressed inability to give a definite opinion. Eventually, the accused came to be convicted for the offence punishable under section 138 of the N.I. Act, 1881 and sentenced to suffer rigorous imprisonment for one month and pay fine of Rs. 67,10,000/-, by judgment and order dated 25th June 2016. 3.3. The petitioner-accused preferred appeal, being Criminal Appeal No. 553 of 2016. In the appeal, the petitioner preferred an application (Exhibit 6) seeking permission to lead additional evidence in the nature of tenderi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition, it may be apposite to extract, at this stage itself, the relevant averments in paragraph Nos. 4 and 5 of the application: 4] It is most respectfully submitted, that while dealing with the case documents, in the month of June 2017, she found a photostat of the cheque bearing No. 0754270, dated 07-02-2008, with her, which clearly shows that, the said cheque has been tampered with the date/s of the cheque in question, by the complainant/respondent. Therefore, the same could not be filed before the Trial Court. 5] It is further most respectfully submitted that, in the interest of justice, the photocopy of the cheque in question may kindly be taken on record as additional evidence and also consider the same as secondary evidence, so as to meet the ends of justice. The appellant hastens to submit that the contention that cheque bearing No. 0754270 never issued on 07-02-2008 and that the complainant has tampered with the date and that there exists no legally enforceable liability on 07-12-2008, can be fortified from the opinion of the expert. The appellant submits that, in order to conclude the fair and conclusive decision of the appeal the instant application may kindly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people. 9. Per contra, the learned counsel for the respondent No. 1 stoutly submitted that the application for leading additional evidence under section 391 of the Code constituted a link in the chain of dilatory tactics adopted by the accused to defeat the legitimate claim of the complainant. The learned counsel urged with a degree of vehemence that the very premise of the application that, the photostat copy of the subject cheque was found in the year 2017, though the cheque was drawn in the year 2008, does not appeal to human credulity. There is no explanation much less reasonable one for not asserting the fact that a photostat copy of the cheque with the date 7-2-2008 was in existence at any point of time till the application came to be preferred. 10. Placing reliance on a judgment of the Supreme Court in the case of Ashok Tehersing Bhutia Vs. State of Sikkim (2011) 4 SCC 402, wherein a note of caution was administered that exercise of the power of permitting the additional evidence at the appellate stage must be sparing and only in exceptionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 391 does not indicate the circumstances in which the discretion is to be exercised. However, having regard to the fact that the Code contains elaborate provisions for a fair trial by the trial court and the matter reaches the appellate court after conclusion of the trial, the recourse to the provisions contained in section 391 has to be made sparingly and in deserving cases where the dictate of justice commands. 12. A profitable reference can be made to a three Judge Bench judgment of the Supreme Court in the case of Rajeswar Prasad Misra Vs. The State of West Bengal Anr. AIR 1965 SCC 1887, wherein the supreme Court expounded the scope of the provisions contained in section 428 of the Code of Criminal Procedure, 1898, the precursor to section 391 of the Code. The observations of the Supreme Court in paragraph 9 are instructive and they are extracted below: (9) Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regard to the concept of fair play and justice, well being of the society. 4. Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the C.P. Code. (emphasis supplied) 14. In the case of Zahira Habibulla H. Sheikh Another vs. State of Gujarat and Ors. (2004) 4 SCC 158, in the backdrop of the peculiar facts of the case therein, after adverting to the aforesaid pronouncement in the case of Rambhau Anr. (Supra), the Supreme Court enunciated the object and scope of section 391 of the Code. The Supreme Court observed, inter-alia, as under: 47 ..The prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. 29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. (Vide Rajeswar Prasad Misra v. The State of West Bengal Anr., AIR 1965 SC 1887; Ratilal Bhanji Mithani v. The State of Maharashtra Ors., AIR 1971 SC 1630; Rambhau Anr. v. State of Maharashtra, AIR 2001 SC 2120; Anil Sharma Ors. v. State of Jharkhand, AIR 2004 SC 2294; Zahira Habibulla H. Sheikh Anr. v. State of Gujarat Ors., (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352). (emphasis supplie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidence sought to be led is of such character that its existence and authorship cannot be disputed, such evidence lends assurance to the exercise of discretion. Where, the evidence sought to be led is of impeachable character, like a photostat copy of a negotiable instrument, the exercise of discretion to allow leading of such evidence is conditioned by a greater caution. 19. In the case at hand, if the petitioner is allowed to lead the evidence, as proposed, it has the propensity to reopen the entire trial, partaking the character 20. the aspect of the date on which the subject cheque was payable. 21. In the totality of the circumstances, the learned Additional Sessions Judge, in my view, committed no error in disallowing the applicant to lead additional evidence. In any event, the exercise of discretion by the learned Additional Sessions Judge is not vitiated by such elements of perversity or unreasonableness as would warrant exercise of extraordinary writ jurisdiction. 22. The conspectus of the aforesaid consideration is that the petition deserves to be dismissed. 23. Hence, the following order: ORDER The Petition stands dismissed. Rule discha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
