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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL WRIT PETITION NO. 126 OF 2010

Subhash Chunnilal Gandecha,

Aged 36 yrs, Occ. Agrilst.,
r/o. Dabadhi, Tq. Arni,
Distt. Yavatmal. ........ PETITIONER

// VERSUS //

1. Mehandibhai s/o. Musabhai Lakhani,

Aged 52 yrs., Occ. Business.
r/o. Karanji Road, Tq. Pandharkawada,
Distt. Yavatmal.

2. Shri I.S.Gazi,
Aged 30 yrs., Occ. Advocate,
r/o. Dr. Ambedkar Ward,
c/o. Khan Baba, Pandharkawada,
Tq. Kelapur, Distt. Yavatmal. ........ RESPONDENTS

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Mr. P.N.Mehta, Adv. for the Petitioner.
Mr. F.T.Mirza, Adv. for Respondent No.1.
Mr. A.I.Sheikh, Adv. for Respondent No.2.
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Coram: A.P.BHANGALE, J.

Date : 01/07/2011.

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard Mr. P.N.Mehta,

Adv. for the Petitioner, Mr.F.T.Mirza, Adv. for Respondent No.1 and

Mr.A.I.Sheikh, Adv. for Respondent No.2.

2. By this petition under Article 227 of the Constitution of India

read with Section 482 of the Code of Criminal Procedure, the petitioner

has approached this Court for quashing and setting aside the order

dt.30.1.2010 passed by the learned Additional Sessions, Kelapur in

Criminal Appeal No.21 of 2008.

3. It appears that the present petitioner was prosecuted in a

Complaint Case u/s. 138 of the Negotiable Instruments Act in the Court of

the Judicial Magistrate, First Class, Pandharkawada in Summary Criminal

Case No.374 of 2008 decided on 29.11.2008 whereby the petitioner was

convicted for the offence punishable u/s. 138 of the Negotiable

Instruments Act and was sentenced to suffer simple imprisonment for

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three months and to pay a fine in the sum of Rs.3,50,000/-; in default of

payment of fine, he was directed to further undergo simple imprisonment

for one month. The amount of fine, if recovered, was directed to be paid

to the complainant Mehandibhai as compensation u/s. 357 (1) of the Code

of Criminal Procedure.

4. It appears that the complainant had filed a complaint against

the accused alleging commission of offence punishable u/s. 138 of the

Negotiable Instruments Act on the ground that the petitioner (Original

accused) had issued a cheque on 25.11.2007 in the sum of Rs.3,00,000/-

drawn upon the Yavatmal Zilla Madyavarti Bank Ltd. Yavatmal. The said

cheque was returned dishonored on 31st December, 2007. The

complainant had issued demand notice dt.10.1.2008 demanding amount

of the cheque. No reply was sent to that notice by the petitioner/accused.

Thus, the complaint was filed. During the complaint proceedings, the

petitioner/accused defended the prosecution on the ground that he had

not entered into any transaction with the complainant and he did not

know the complainant. The petitioner/accused also defended the

complaint on the ground that he was introduced with the complainant by

a mediator in the transaction (“Nagmani” transaction) and that the

petitioner/accused had issued the cheque (Exh.24) in order to save the

complainant from harassment from his family members. The

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petitioner/accused had also defended the complaint on the ground that

the cheque was issued by way of security, even though he was not liable

to pay anything to the complainant.

5. After recording evidence of the complainant as well as relying

upon on behalf of the defence, the learned trial Magistrate, after hearing

the learned Advocate representing the parties, proceeded to disbelieve

the case of the petitioner/accused in the trial Court and convicted him of

the offence punishable u/s.138 of the Act as mentioned above.

6. It appears that the petitioner/accused challenged the judgment

and order passed by the trial Magistrate by filing Criminal Appeal No.21 of

2008 before the learned Additional Sessions Judge, Pandharkawada

(Kelapur). It appears that, during pendency of the Criminal Appeal No.21

of 2008, on or about 3rd February, 2009, an application was filed before

the learned Additional Sessions Judge with a prayer seeking adjournment

of three months to comply with the order passed by the learned

Additional Sessions Judge on 14.1.2009 to deposit a sum of Rs.1,50,000/-

within four weeks. It also appears that the Court was informed that the

appellant will pay the sum of Rs.5,25,000/- within a period of three

months and in consideration thereof, the respondent will withdraw the

complaint against the petitioner/accused. But, adjournment was sought

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on the ground that the appellant is intending to sell his agricultural land.

7. Under these circumstances, it appears that another application

was preferred by the petitioner on 2nd May, 2009 through another

Advocate alleging that his Advocate (added respondent no.2 in this

petition during pendency of this petition) cheated him and threatened him

to file an application. It is also alleged that the complainant threatened to

kill the petitioner/accused if the amount is not paid. On these grounds,

the appellant disowned the earlier application informing about the

compromise between the complainant and the accused and prayed for

hearing the appellant on merits. The Advocate representing the

petitioner also filed an application for personal exemption of the

petitioner on the ground that the complainant gave threat to kill him if

the amount is not paid. Such an application was made on 2.5.2009.

Accordingly, the Station House Officer of Police Station, Pandharkawada

was also moved on 12.5.2009.

8. It is under these circumstances that another application was

tendered on 4th December, 2009 purportedly u/s. 391 of the Code of

Criminal Procedure for permission to lead additional evidence. The

application averred that the impugned cheque was never issued in

discharge of any lawful debt or for any lawful consideration. It is also

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averred that the cheque was obtained by the complainant because the

complainant was put to loss of Rs.5,00,000/- in the deal of purchase of

Nagmani and to avoid harassment from the family members of the

complainant, but the complainant played mischief by presenting the

cheque for encashment. It is further averred that the complainant had

approached the accused for compromise in the Office of one Mr.Jalpatkar,

Adv. and during conversation with the petitioner and his Advocate in June,

2009, the complainant admitted falsity in prosecution of the accused and

that the entire conversation was video-graphed. Thus, the

petitioner/accused sought to produce video-graphed C.D. as additional

evidence u/s. 391 of the Code of Criminal Procedure. He further claims

that he is innocent and must get an opportunity to unmask the

complainant.

9. The learned Sessions Judge, Pandharkawada, by a detailed

order passed on 30th January, 2010, rejected the application making

reference to the contradictory nature of defences adopted by the accused

as also the nature of defence already put forth and sought to be put forth

regarding the cheque encashed. It appears that, in the Additional

Sessions Court, Pandharkawada, the petitioner had relied upon the ruling

in the case of Zehira Habibullah H. Sheikh and another .vs. State of

Gujrat and Ors. reported in AIR 2004 SC 3114 and observed that

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there can be no debate as regards the principles laid down by the

Supreme Court. However considering the matter before it, the learned

Additional Sessions Judge observed that it is vastly different than that it

was before the Supreme Court. Meaning thereby, that entirely a new

piece of evidence brought into existence during pendency of the appeal is

sought to be brought on record to substantiate the defence version. The

learned Additional Sessions Judge also considered the defence of the

accused throughout the trial admitting issuance of cheque in the sum of

Rs.3,00,000/- as also transaction of “Nagmani” pleaded as defence in

rebuttal of statutory presumptions in favour of the complainant. It

appears that the learned Additional Sessions Judge did peruse the

conversation sought to be produced on record which is in the form of

transcription. According to the learned Advocate for the

petitioner/accused, the learned Additional Sessions Judge also viewed the

CD in his chamber. Be that as it may, the learned Additional Sessions

Judge has expressed his opinion thus :

“ …... Therefore, apparently the conversation is not

sufficient to bring him the defence sought to be built up”.

10. It is further observed by the Appellate Judge that “ if evidence

which is manipulated or procured subsequent to a trial is produced on

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record it would run afoul to the very purpose and intent of enacting

provision of Section 391 of the Cr.P.C.” The learned Appellate Judge also

noted the conduct of the accused/appellant during pendency of the

appeal in protracting the litigation by moving various applications

referred to in the impugned order. Thus, in the facts and circumstances

noted by the learned Appellate Judge, he concluded that they were not

sufficient to invoke the powers u/s. 391 of the Code of Criminal Procedure.

11. One cannot dispute that the object of Section 391 is to sub-

serve the ends of justice and to get at the truth and power u/s. 391 can

be exercised by the Appellate Court to arrive at the truth. The Apex

Court had observed that primary object of Section 391 is to prevent

escape of a guilty man through some careless or ignorant proceedings

before a Court or vindication of innocent person wrongfully made

accused. Power u/s. 391 of the Code of Criminal Procedure enables the

Appellate Court to ensure that justice is done and correct and proper

findings are recorded in a given case. Therefore, there can be no quarrel

over the proposition that the Appellate Court does have power to take

additional evidence which is necessary for arriving at a just decision of

the case.

12. The learned Advocate for the petitioner in this regard also made

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a reference to the rulings in the cases of Rajeswar Prasad Mishra vs.

the State of West Bengal reported in AIR 1965 SC 1887; State of

Gujarat vs. Mohanlal Jitamalji Porwal and anr. reported in AIR 1987

SC 1321; Rambhau and another vs. State of Maharashtra reported

in AIR 2001 SC 2120 and Anil Sharma and others vs. State of

Jharkhand reported in (2004) 5 SCC 679.

Section 391 of the Code of Criminal Procedure reads thus :

“ S.391 (1) In dealing with any appeal under this

Chapter, the Appellate Court, if it thinks additional
evidence to be necessary, shall record its reasons
and may either take such evidence itself, or direct it
to be taken by a Magistrate, or when the Appellate
Court is a High Court, by a Court of Session or a
Magistrate.
(2) When the additional evidence is taken by
the Court of Session or the Magistrate, it or he shall
certify such evidence to the Appellate Court, and
such Court shall thereupon proceed to dispose of
the appeal.
(3) The accused or his pleader shall have the
right to be present when the additional evidence is
taken.
(4) The taking of evidence under this section
shall be subject to the provisions of Chapter XXIII,
as if it were an inquiry.”

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13. The Appellate Court can exercise power to take additional

evidence or direct it to be taken provided that it records its reasons for

the same. It is only then the Appellate Court could either record such

further evidence or direct it to be recorded by the Sub-ordinate Court as

mentioned in Section 391 (4). It is the discretion of the Appellate Court to

receive such additional evidence if it is necessary, but nobody can be

allowed to claim as a matter of right that such evidence must be taken or

accepted, as, it may allow either of the parties to fill up the lacunas or

gap in evidence recorded by the trial Court.

14. The learned Advocate for the respondent/complainant opposed

the prayer vehemently on the ground that the conduct of the

petitioner/accused throughout the trial as well as during pendency of the

appeal ought to be noted. He made reference to the copies of roznamas

from the Appellate Court during the period from 24.12.2008 to 19.1.2011

in order to submit that the petitioner/accused was represented by the

various Advocates during the various stages of the proceedings. While the

petitioner/accused prayed for suspension of sentence in December, 2008,

he was represented by one Mr.D.P.Mohod, Adv. Later when he prayed for

the case to be taken on Board on the ground of urgency on 1st January,

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2009, he was represented by one Ms M.S.Janpatkar, Adv. Later, after the

order was passed for suspension of sentence on 7.1.2009, he was

represented by Adv. Mutyalwar. On 13.1.2009, another Advocate was

engaged by the petitioner/accused by name Mr.Dhatrak and on 3.2.2009,

the petitioner/accused engaged another Advocate Mr.I.S.Gazi (respondent

no.2 herein) when extension was sought from the Appellate Court to

comply with the order suspending the sentence. On 25.8.2009, the

petitioner/accused chose to engage Mr.P.N.Mehta, Adv. from Nagpur and

on 19.9.2009, power was filed by another Advocate Mr.Chowdhary. On

20.12.2010, Vakalatnama was filed by one Mr.P.B.Dethe, Adv. on behalf

of the petitioner/accused in the pending appeal. My attention is also

invited to the application preferred by the petitioner/accused in the

Appellate Court in English which was noted as Exh.No.14 in the pending

appeal when adjournment was sought on the ground that previous

Advocate Mr.Mohod was unable to appear. Learned Advocate for the

respondent/complainant contended that the petitioner/accused is not a

layman. He is English knowing person. He has also engaged services of

battery of lawyers to prosecute the appeal. The learned Advocate for the

respondent/complainant also contended that, considering the nature of

the case as Summary Criminal Case as also statutory presumptions in

favour of the complainant arising from admission by the accused that he

had issued cheque in question it was open for the accused to lead

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evidence to rebut the statutory presumptions and he had availed of the

opportunity in the trial Court to lead evidence by way of rebuttal. It is

further submitted that he cannot now be allowed to invent a new story

with the help of his Advocate so as to fill up the lacuna or to defeat the

case of the complainant. It is contended that perusal of copy of the

roznama would show that the application in respect of which the

impugned order was passed was filed on 4.12.2009 when Advocate Ms

Janpatkar had appeared for the petitioner/accused in the pending appeal

only once on 1.1.2009. It is also contended that the application u/s.391 of

the Code of Criminal Procedure in the Sessions Court was nothing but an

attempt to prolong hearing of the appeal by trying to fill up the lacunas

in the evidence led by the petitioner/accused in the trial Court in a

Summary Criminal Case. It is further submitted that there was no illegality

in the impugned order nor it can be said that the Appellate Court has

exceeded its jurisdiction by rejecting the application.

15. With reference to the ruling in the case of Zahira Habibulla H.

Sheikh and another (cited supra), it is submitted that the Hon'ble Apex

Court had considered the provisions of Section 391 of Code of Criminal

Procedure and noted that the need to give finalty to trial in Criminal

proceedings is paramount as otherwise prejudice is caused to the accused

persons and in fact it would be a negation of the fundamental rule of law

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to make the accused to undergo trial once over which has the effect of

derailing system of justice. It is also noted in Para 32 that the necessity

and need for additional evidence has to be determined in the context of

the need for a just decision and it cannot be used for filling up a lacuna.

Thus, if the appellate Court feels that there is necessity to act in terms of

Section 391 as an exception to the ordinary rule, then it can exercise the

power. In the case of Zahira Habibulla H. Sheikh (cited supra), the Apex

Court did consider the affidavits of certain witnesses alleging threat

during the trial. Therefore, the power u/s. 391 was felt necessary. Even

the trial was directed to be conducted outside the state. The Apex Court

directed for re-trial and even trial was directed to be conducted out of the

State so that unhealthy atmosphere which lead to failure or miscarriage

of justice is not repeated. It is contended by the learned Advocate that , in

the facts and circumstances of the present case, considering the conduct

of the petitioner/accused throughout the trial and during pendency of the

appeal, the learned Appellate Judge has rightly exercised the discretion to

reject the application.

16. It is further submitted that, in the case of Mamata Devi w/o.

Prafullakumar Bhansli .vs. Vijaykumar Mamraj Agrawal reported in

2007(6) Mh.L.J. 809, in identical prosecution u/s. 138 of the Negotiable

Instruments Act, this Court has held that no party shall be entitled to

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produce additional evidence in order to fill up the lacuna. It is observed

thus :

“ What Section 391 of Criminal Procedure Code says is

that if the Appellate Court thinks such evidence to be
necessary, it shall take it itself or cause itself to be taken
by the Magistrate. “

It is further observed as under :

“ 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 power
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 finalty 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 subserve the ends of justice.

17. In Abdul Latif and Ors. vs. State of Uttar Pradesh reported

in AIR 1978 SC 472, the Apex Court refused to interfere under Article

136 of the Constitution of India and held that the finding of the High Court

that the evidence of any witness is not necessary for a just decision of the

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case is a finding of fact and unless there is some substantial error in the

judgment of the High Court, the Supreme Court would not interfere.

Thus, in the facts and circumstances of the case and also looking into the

nature of controversy between the parties, I must conclude that, after

going through the affidavits on record as also the copies of documents

relied upon, there is no substantial error of judgment in the impugned

order since the learned Appellate Judge has already considered

transcription of video-graphed CD as also viewed the video-graphed CD.

The learned Judge is expected to decide the pending appeal strictly on

merits without being influenced by the observations made herein.

In view of the observations, no interference is called for in the

impugned order. Hence, the petition is dismissed. No order as to costs.

JUDGE

jaiswal

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