Section 391 CrPC additional evidence at appeal is discretionary and cannot be used to fill gaps in the defence case.

Section 391 CrPC permits additional evidence at the appellate stage only sparingly and where it is necessary to meet the ends of justice. An application to exhibit documents already on record was unnecessary because the material had been produced earlier and treated as admitted, so no prejudice arose from its being read in evidence. The request to cross-examine the complainant was rejected because it sought to introduce a changed defence at appeal, rather than address any genuine need arising from new material or due diligence. The application was therefore not made out and was rightly rejected.

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Issues: Whether the application under Section 391 of the Code of Criminal Procedure, 1973 to exhibit already produced documents and to cross-examine the complainant at the appellate stage ought to be allowed.

Analysis: The application did not rest on discovery of any new material after the trial or on any inability, despite due diligence, to produce the evidence earlier. The documents sought to be exhibited were already on record and were treated as admitted, so no prejudice arose from their being read in evidence. However, the request to further cross-examine the complainant was found to be aimed at introducing a changed defence at the appellate stage, moving from the earlier case of stolen or misused cheques to a plea of prior payment. The power under Section 391 is discretionary and is to be exercised sparingly, only where additional evidence is necessary to meet the ends of justice, and not to fill up gaps in the defence case.

Conclusion: The application under Section 391 was not made out and was rightly rejected.

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