Additional evidence on appeal is allowed sparingly under criminal procedure, but documentary proof may be admitted to prevent failure of justice.

Section 391 of the Code of Criminal Procedure, 1973 permits additional evidence at the appellate stage only sparingly, where it is necessary for a just decision and to prevent failure of justice. It cannot be used to fill lacuna, alter the case, or reopen the trial. Documentary evidence also falls within "evidence" under the provision, so an appellate court may permit production of documents where their absence would cause injustice. On the stated facts, the attempt to introduce material to show a security cheque and contest liability was impermissible, but production of the admitted reply to the demand notice was allowed only to prove its existence.

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Issues: (i) Whether additional evidence under section 391 of the Code of Criminal Procedure, 1973 can be permitted at the appellate stage only sparingly and not for filling lacuna or converting the appeal into a retrial; (ii) whether the provision extends to production of documentary evidence, including the copy of the reply to the demand notice, where its non-production would cause failure of justice.

Issue (i): Whether additional evidence under section 391 of the Code of Criminal Procedure, 1973 can be permitted at the appellate stage only sparingly and not for filling lacuna or converting the appeal into a retrial.

Analysis: The discretionary power under section 391 is an exception to the general rule that an appeal is to be decided on the trial record. It may be exercised only where the appellate court finds the additional evidence necessary for a just decision and where failure to receive it would result in failure of justice. The power is to be used sparingly and with caution. It cannot be invoked to fill up lacuna, to change the nature of the case, or to reopen the entire trial. On the facts, the attempt to introduce documents to show that the cheque was a security cheque and to contest liability was held to be an afterthought and an impermissible attempt to reopen the accused's defence, especially when those documents were always within the accused's knowledge and possession.

Conclusion: The prayer for additional evidence was not sustainable to the extent it sought to introduce those documents, and that part of the request was rightly rejected.

Issue (ii): Whether the provision extends to production of documentary evidence, including the copy of the reply to the demand notice, where its non-production would cause failure of justice.

Analysis: The word "evidence" in section 391 is not confined to oral testimony. Documentary evidence is also evidence, and the appellate court may receive it where the interests of justice so require. Since the complainant had admitted that a reply to the demand notice had in fact been sent, non-production of the reply on the record could not justify an adverse inference that no reply existed. To prevent failure of justice, the accused was entitled to place the reply on record, but only for proving its existence and not for leading further evidence to establish the truth of its contents.

Conclusion: The application was properly allowed only to the limited extent of permitting production of the copy of the reply dated 4 January 2013.

Final Conclusion: The revisional court upheld the refusal to permit additional evidence generally, but modified the order to allow only the limited production of the admitted reply notice, balancing the rule against retrial with the need to prevent failure of justice.

Ratio Decidendi: Section 391 of the Code of Criminal Procedure, 1973 permits additional evidence, including documentary evidence, only where it is necessary to prevent failure of justice and not to fill lacuna or effect a retrial.

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