2019 (11) TMI 1200 - HC - Indian Laws

Court allows additional evidence in reply to demand notice but limits other documents. Clarifies Section 391 scope.

The court partly allowed the application, permitting the accused to produce the reply to the demand notice as additional evidence but not allowing other ... Dishonor of Cheque - insufficiency of funds - Accursed seeking permission to lead additional evidence - accused had filed complaint against him (the complainant) and his father for cheating - section 391 and 394 of the Code of Criminal Procedure, 1973 - HELD THAT:- Onus lay upon the accused to dislodge the presumptions that the cheque was drawn for consideration and in discharge of a legally enforceable debt or liability. - Whether the accused succeeded in rebutting the presumptions of law warrants adjudication. However, mere failure to place on record the copy of the reply could not have been construed as a failure to dislodge to the presumption especially when it was the claim of the complainant that the accused had replied the statutory demand notice raising false contentions - The situation which, thus, obtains is that so far as the endeavour of the accused to lead evidence in the nature of the documents to demonstrate that the cheque was drawn by way of security only and to contest the quantum of liability for which the cheque was allegedly drawn, the omission to place on record the said documents before the trial court, is clearly in the realm of lacuna for reasons more than one. In the facts of the case, no justifiable ground is made out for such a course, which would have been permissible had there been a resultant failure of justice. Thus, to the extent of those documents, excluding the reply to the demand notice, the learned Sessions Judge was within his rights in rejecting the application. As the factum of reply to the demand notice was indisputable, in my considered opinion, to prevent failure of justice, the accused can be permitted to place the said reply on the record of the Court. However, this would not be construed as an opportunity for the accused to lead evidence aliende in proof of the correctness of the contents of the said reply. Thus, to restrict the powers of the appellate court to receive only oral evidence and exclude documentary evidence from its purview, would be in complete derogation of the letter and spirit of the provisions contained in section 391 of the Code - Application allowed in part. Issues Involved:1. Legality of the order rejecting the application to adduce additional evidence under Section 391 of the Code of Criminal Procedure, 1973.2. Whether the accused should be permitted to produce additional documents as evidence.3. Interpretation of Section 391 of the Code regarding the admissibility of additional evidence at the appellate stage.Detailed Analysis:Issue 1: Legality of the Order Rejecting the Application to Adduce Additional EvidenceThe revision application challenges the order dated 28th June 2017, where the Additional Sessions Judge, Pune, rejected the accused's application to adduce additional evidence under Section 391 of the Code of Criminal Procedure, 1973. The accused had sought to introduce documents such as complaints lodged with Bowbazar Police Station, Kolkata, receipts, purchase bills, and a reply to the demand notice. The Sessions Judge dismissed the application, reasoning that the inadvertent omission to produce these documents during the trial did not warrant acceptance and that allowing such evidence would essentially result in a retrial.Issue 2: Whether the Accused Should Be Permitted to Produce Additional Documents as EvidenceThe accused argued that the additional evidence was necessary for a just decision of the case and not merely an afterthought. The accused had already put forth a defense during cross-examination, and the additional documents would support this defense. The complainant countered that the application was an attempt to fill in gaps and delay the appeal's disposal. The court noted that while the accused had the opportunity to present these documents during the trial, their failure to do so could not be overlooked. However, the court found merit in allowing the production of the reply to the demand notice, as it was admitted by the complainant and its absence had been construed adversely against the accused by the Magistrate.Issue 3: Interpretation of Section 391 of the Code Regarding the Admissibility of Additional Evidence at the Appellate StageSection 391 of the Code grants the appellate court wide discretion to admit additional evidence if it deems it necessary for a just decision. The court must record reasons for admitting such evidence. The provision aims to promote justice rather than serve the desires of the parties. The Supreme Court has emphasized that this power should be exercised sparingly and only in exceptional cases. The High Court reaffirmed that additional evidence should not be used to fill gaps or cause prejudice to the accused. The court disagreed with the narrow interpretation that Section 391 only allows for oral evidence, affirming that documentary evidence is also admissible under this provision.Conclusion:The court partly allowed the application, setting aside the order to the extent that it rejected the production of the reply to the demand notice dated 4th January 2013. The court permitted the accused to produce this reply as additional evidence but did not allow other documents, as their omission during the trial was considered a lacuna that could not be remedied at the appellate stage. The decision underscores the importance of presenting all relevant evidence during the trial and clarifies the scope of Section 391 regarding additional evidence at the appellate level.