2022 (6) TMI 581 - HC - Indian Laws

Court affirms denial of additional evidence in Section 138 case. Discretion upheld, no costs.

Mrs Pournima W/o. Kishor Pendke Versus Ashok Manibhai Patel, State of Maharashtra

The court upheld the Additional Sessions Judge's decision to reject the petitioner's application to introduce additional evidence in a case involving a ... Dishonor of Cheque - rejection of prayer of the petitioner/appellant to lead additional evidence under section 391 of the Code of Criminal Procedure, 1973 - section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- In order to appraise the correctness of the exercise of discretion by the appellate court, in the light of the averments in the application, it becomes evident that the sole ground sought to be put-forth by the petitioner-accused is of chancing upon a photostat copy of the cheque in the month of June 2017, post pronouncement of the judgment by the trial court. Interestingly, in paragraph 4 of the application, what the petitioner asserts is that the photostat copy of the cheque was found while dealing with the case documents. The petitioner neither asserts that she was not in possession of the document nor was she unaware of the existence of the said document. Moreover, it is not the case of the petitioner that the photostat copy of the cheque was allegedly found while perusing some other record. In contrast, the petitioner asserts that the photostat copy of the cheque was indeed found while dealing with the case documents. Meaning thereby, while perusing the documents pertaining to the subject prosecution. Secondly, the nature of the documents sought to be adduced by way of additional evidence also assumes importance. A photostat copy by its very nature is vulnerable to allegations of manipulation. Different considerations come into play when a copying process in itself ensures correctness of copy's contents qua the original. In the absence of any contemporaneous material in the nature of acknowledgment or otherwise, a plea that a photostat copy of the instrument in question was found after about 9 years of its execution to bolster up the defence that when the original instrument was delivered, it was in a state, which the photostat suggests, cannot be readily acceded to. In the case at hand, if the petitioner is allowed to lead the evidence, as proposed, it has the propensity to reopen the entire trial, partaking the character, the aspect of the date on which the subject cheque was payable. The learned Additional Sessions Judge committed no error in disallowing the applicant to lead additional evidence. In any event, the exercise of discretion by the learned Additional Sessions Judge is not vitiated by such elements of perversity or unreasonableness as would warrant exercise of extraordinary writ jurisdiction - Petition dismissed. Issues Involved:1. Conviction under Section 138 of the Negotiable Instruments Act, 1881.2. Rejection of application to lead additional evidence under Section 391 of the Code of Criminal Procedure, 1973.3. Allegation of interpolation in the date on the cheque.4. Discovery of a photostat copy of the cheque as additional evidence.5. Discretion of the appellate court under Section 391 of the Code.Detailed Analysis:1. Conviction under Section 138 of the Negotiable Instruments Act, 1881:The petitioner was convicted for an offence punishable under Section 138 of the N.I. Act, 1881, for issuing a cheque that was dishonored due to insufficient funds. The complainant alleged that the petitioner issued the cheque as part of an agreement for the sale of land, which was not honored. Despite a demand notice, the petitioner failed to pay the amount, leading to the conviction.2. Rejection of application to lead additional evidence under Section 391 of the Code of Criminal Procedure, 1973:The petitioner sought to introduce a photostat copy of the cheque as additional evidence, claiming it bore a different date, which would support the defense of interpolation. The Additional Sessions Judge rejected this application, stating that the defense of interpolation had already been raised and evidence from handwriting experts had been presented during the trial.3. Allegation of interpolation in the date on the cheque:The petitioner argued that the date on the cheque was altered from '7-2-2008' to '7-12-2008' by inserting the figure '1'. This claim was supported by a private handwriting expert but not conclusively by the government expert. The trial court did not find the defense persuasive and convicted the petitioner.4. Discovery of a photostat copy of the cheque as additional evidence:The petitioner claimed to have found a photostat copy of the cheque in June 2017, which showed the original date as '7-2-2008'. The petitioner argued that this evidence was crucial for a just decision and sought to introduce it under Section 391 of the Code. The complainant countered that this was a manipulative tactic and that the photocopy could easily be tampered with.5. Discretion of the appellate court under Section 391 of the Code:The court examined the provisions and judicial interpretations of Section 391, which allows the appellate court to admit additional evidence if deemed necessary for justice. The court emphasized that this power should be exercised sparingly and only in exceptional cases. The petitioner's claim of discovering the photostat copy after the trial was not found credible, given the nine-year gap and the nature of the evidence. The court noted that allowing such evidence could reopen the entire trial, which is not the intent of Section 391.Conclusion:The court found no error in the Additional Sessions Judge's decision to reject the application for additional evidence. The exercise of discretion was deemed appropriate and not perverse or unreasonable. Consequently, the petition was dismissed, and the rule was discharged with no order as to costs.