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TMI Blog2024 (6) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... cross examine the respondent. The petitioner failed to cross examine the respondent before the Trial Court will not be a reason to come to a conclusion that there is no cross examination required and the petitioner had committed the offence. It is to be seen that the evidence includes examination-in-chief, cross examination, re-examination and the evidence would be complete when it is tested by cross examination. In this case, admittedly the respondent/complainant was not cross examined. Further, in a case under Section 138 NI Act, statutory presumption against the accused has to be dislodged by way of materials and cross examination. In the present case, the case is at the appellate stage and hence, Section 391 Cr.P.C. had been invoked by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 in which a petition in Crl MP No.24708 of 2023 under Section 391 of Cr.P.C filed for adducing additional evidence of viz, one D.Kuzhalamani, the mother of PW1. The said miscellaneous petition was dismissed by the V Additional Sessions Judge, City Civil Court, Chennai, Vide order dated 09.11.2023. Aggrieved by the said order, the present criminal revision case filed before this Court. 2. According to the petitioner, the said Mrs.D.Kuzhalamani is due to the petitioner a sum of Rs.20,00,000/- for which she issued a cheque drawn in favour of the petitioner on Punjab National Bank, Kilpauk, Chennai, dated 20.11.2020. Thereafter, the petitioner took steps to proceed against her. On coming to know about the same, the said Mrs.D.Kuzhalamani tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.22,19,973/- hence the respondent's mother can very well paid the balance amount of Rs.5,00,000/- but for what reason the respondent steps into the role of complainant and filed the above case is not known and no explanation is given in this regard. He would further submit that the petitioner retired from Income Tax Department, having sufficient amount and there is no necessary for him to borrow money from the respondent. It is not disputed by the respondent that the cheque drawn in Punjab National Bank for Rs.20,00,000/- is with the petitioner and no explanation how the cheque reached the petitioner's hand. The Trial Court took the complaint on file on 23.08.2022 and disposed the case by judgment dated 16.05.2023 within a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court should be magnanimous in permitting such mistakes to be rectified. Further referring to the judgment in the case of Brigadier Sukhjeet Singh vs. State of Uttar Pradesh reported in (2019) 16 SCC 712, the learned counsel submitted that power to take additional evidence under Section 391 Cr.P.C., is with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The Lower Appellate Court in the impugned order admits that the mother of the respondent, namely, Mrs.D.Kuzhalamani by RTGS transferred Rs.20,00,000/- to the petitioner and records the cheque for Rs.20,00,000/- drawn in Punjab National Bank bearing Cheque No.169684 dated 20.11.2020 presented for encashment got dishonoured for the reason, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent's mother is of old age with ill-health and unable to sign as per the specimen signature given to the Bank, hence the cheque given by the respondent's mother got dishonoured. The petitioner coming to know about the respondent's mother ill-health, to protract and cause harassment to the respondent and his mother filed the above petition. If the petitioner is sincere in defending his case, the petitioner ought to have participated in the trial cross examined the respondent at the given opportunity, failing to do so and now filing this petition is only to protract the proceedings. He would further submit that the petitioner has not come up with clean hands and the Lower Appellate Court by giving justifiable reasons dismissed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-examination and the evidence would be complete when it is tested by cross examination. In this case, admittedly the respondent/complainant was not cross examined. Further, in a case under Section 138 NI Act, statutory presumption against the accused has to be dislodged by way of materials and cross examination. In the present case, the case is at the appellate stage and hence, Section 391 Cr.P.C. had been invoked by the petitioner. In the case of Rambhau vs. State of Maharashtra reported in (2001) 4 SCC 759, the power under Section 391 Cr.P.C. had been elaborated and the Apex Court held that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court and the ultimate object of judicial administrative is to secure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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