2003 (2) TMI 557 - HC - Indian Laws

Court denies applicant's request for additional evidence at appellate stage under Section 391.

The court rejected the applicant's application under Section 391 of the Code of Criminal Procedure, 1973, to lead additional evidence at the appellate ... Power under Section 391 Cr.P.C. to receive additional evidence on appeal - presumption under Section 139 of the Negotiable Instruments Act and evidential burden on accused to rebut - exercise of appellate discretion to admit additional evidence only to subserve the ends of justice and not to fill lacunae - waiver of right to lead defence evidence by declining to examine oneself at trialPower under Section 391 Cr.P.C. to receive additional evidence on appeal - exercise of appellate discretion to admit additional evidence only to subserve the ends of justice and not to fill lacunae - waiver of right to lead defence evidence by declining to examine oneself at trial - Application to permit the accused to examine himself and lead additional evidence under Section 391 Cr.P.C. at the stage of appeal - HELD THAT: - The Court held that the power under Section 391 Cr.P.C. is an exception to the rule that appeals are to be decided on the evidence before the trial Court and must be exercised with caution and only to meet the ends of justice, not to fill lacunae. The accused had opportunity at trial to lead evidence, produced four documents by consent, was represented by counsel, declined to examine himself when offered after recording of his Section 313 statement, and did not press his earlier application for witness summons. The proposed evidence would amount to an improvement or a new case sought to be raised on appeal (as the documents produced at trial covered only some of the shares while the present defence seeks to prove non-possession of all shares). Given these facts, the Court found that the accused had effectively waived the right to lead the additional evidence and that permitting examination at the appeal stage would amount to allowing the accused to fill lacunae in defence; consequently no case was made out for exercise of Section 391 powers in his favour. [Paras 22, 23, 24, 25]Application to allow the accused to examine himself and lead additional evidence under Section 391 Cr.P.C. was rejected.Presumption under Section 139 of the Negotiable Instruments Act and evidential burden on accused to rebut - power under Section 391 Cr.P.C. to receive additional evidence on appeal - Whether subsequent Supreme Court decisions (Hiten Dalal and K.N. Bina) created a new obligation requiring the accused to testify at trial to rebut the presumption under Section 139 NI Act, thereby justifying admission of fresh evidence on appeal - HELD THAT: - The Court examined the contention that later Supreme Court rulings imposed a new legal obligation on accused persons to lead oral evidence to rebut the statutory presumption under Section 139. It concluded that those decisions did not lay down a new principle but reiterated existing authorities regarding the standard of proof required to rebut presumptions. The true question remains one of whether the ends of justice require admission of additional evidence; the mere existence of later decisions did not, by themselves, entitle the accused to reopen or improve his defence on appeal where he had declined to adduce evidence at trial. [Paras 20, 21, 22]No new legal obligation was created by the cited decisions that would mandate reception of additional evidence on appeal in the present facts; the objection based on change of law was rejected.Final Conclusion: The application under Section 391 Cr.P.C. seeking leave for the accused to examine himself and lead additional evidence in the appeal was rejected; the appellate Court is to proceed uninfluenced by the observations in this order. Issues Involved:1. Invocation of Section 391 of the Code of Criminal Procedure, 1973.2. Rebuttal of presumption under Sections 138 and 139 of the Negotiable Instruments Act.3. Consideration of additional evidence at the appellate stage.4. Alleged abuse of procedural law and miscarriage of justice.Issue-wise Detailed Analysis:1. Invocation of Section 391 of the Code of Criminal Procedure, 1973:The applicant sought to invoke Section 391 to lead additional evidence at the appellate stage. The Sessions Court rejected this application, leading to the present challenge. The applicant argued that the appellate court should exercise its power under Section 391 to allow him to rebut the presumption under Section 139 of the Negotiable Instruments Act by examining himself and presenting further evidence.2. Rebuttal of presumption under Sections 138 and 139 of the Negotiable Instruments Act:The applicant contended that there was no consideration for the cheques issued, thus no legally enforceable debt existed. The trial court convicted the applicant under Section 138, sentencing him to one year of rigorous imprisonment and a fine of Rs. 5,000, with an additional compensation of Rs. 1,00,00,000 to the complainant. The applicant's defense was that the payment was contingent upon the transfer of shares, which had not occurred, justifying his instruction to the banker to stop payment.3. Consideration of additional evidence at the appellate stage:The applicant argued that the Supreme Court's decisions in Hiten Dalal's case and K.N. Bina v. Muniyappan necessitated leading evidence to rebut the presumption under Section 139. The applicant emphasized that the presumption could not be rebutted merely by documents but required proof through testimony. The applicant was ready to subject himself to cross-examination to establish his defense.4. Alleged abuse of procedural law and miscarriage of justice:The applicant claimed that the rejection of his application by the Sessions Court was unjust, as it did not consider whether additional evidence was necessary to determine the truth and serve justice. The applicant argued that the failure to allow him to present additional evidence would result in a miscarriage of justice, as he would be convicted based on a technicality without a fair opportunity to present his defense.Judgment Analysis:The court held that no case was made out for interfering with the Sessions Court's order. It was noted that the Supreme Court's decisions cited by the applicant did not introduce new legal principles but reiterated existing standards. The court emphasized that Section 391 should be exercised with caution and only to meet the ends of justice, not to fill in lacunae in the evidence.The applicant had multiple opportunities during the trial to present his defense but chose not to. The court observed that the applicant's current attempt to lead additional evidence appeared to be an effort to set up a new defense, which was not permissible. The court found that allowing such applications could lead to a flood of similar requests, potentially delaying and subverting justice.Ultimately, the court rejected the application, stating that the applicant's failure to present his defense during the trial could not be remedied at the appellate stage under Section 391. The court directed that the observations made in the judgment should not influence the hearing of the appeal.Conclusion:The application under Section 391 of the Code of Criminal Procedure, 1973, was rejected. The court held that the applicant had not demonstrated a valid reason for leading additional evidence at the appellate stage and that the principles of justice and fair play did not justify such an exercise in this case. The appeal would proceed without considering the additional evidence sought by the applicant.