Additional evidence in criminal appeal cannot fill defence gaps without due diligence; statutory presumptions under cheque law remain rebuttable.

Additional evidence at the appellate stage under Section 391 CrPC is exceptional and cannot be used to fill gaps in the defence unless due diligence is shown or omission would cause failure of justice. The accused had not challenged the cheque signature effectively at trial, and the presumption under Section 118 of the Negotiable Instruments Act remained unrebutted, so refusal to allow handwriting-expert evidence was justified. For the same reason, the appellate court was not required to summon a postal official to dispute service of notice under Section 138, since service could be assessed on the existing record and the court was not bound to collect defence evidence for the accused.

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Issues: (i) Whether the appellate court was required to permit additional evidence under Section 391 of the Code of Criminal Procedure, 1973 for comparison of the disputed cheque signature by a handwriting expert. (ii) Whether the appellate court was required to summon the post office official under Section 391 of the Code of Criminal Procedure, 1973 to support the defence that notice under Section 138 of the Negotiable Instruments Act, 1881 was not received.

Issue (i): Whether the appellate court was required to permit additional evidence under Section 391 of the Code of Criminal Procedure, 1973 for comparison of the disputed cheque signature by a handwriting expert.

Analysis: The power to record additional evidence at the appellate stage is exceptional and is to be exercised only where the applicant shows that, despite due diligence, the evidence could not be produced at trial, or that the material came to light later and its omission would cause failure of justice. The accused had already examined a bank witness during trial but did not ask any question regarding the genuineness of the signature on the cheque. The cheque return memo also did not show dishonour on the ground that the drawer's signature differed from the specimen signature. In addition, the presumption under Section 118 of the Negotiable Instruments Act, 1881, including the presumption as to indorsements and the holder in due course, operated in favour of the complainant, and the accused was required to rebut it by appropriate evidence. Where the accused could have procured certified specimen signatures and sought comparison through lawful evidence, the appellate court was not obliged to collect defence evidence on his behalf.

Conclusion: The refusal to permit handwriting-expert evidence was justified and is upheld.

Issue (ii): Whether the appellate court was required to summon the post office official under Section 391 of the Code of Criminal Procedure, 1973 to support the defence that notice under Section 138 of the Negotiable Instruments Act, 1881 was not received.

Analysis: The question whether notice under Section 138 of the Negotiable Instruments Act, 1881 was served could be examined by the appellate court on the basis of the evidence already on record. There was no necessity to invoke Section 391 of the Code of Criminal Procedure, 1973 for summoning a postal official, particularly when the request did not satisfy the threshold for additional evidence and the appellate court was not expected to assist the accused in gathering defence material.

Conclusion: The refusal to summon the postal official was justified and is upheld.

Final Conclusion: The appellate interference was unwarranted because the accused failed to establish a basis for additional evidence, while the statutory presumptions under the Negotiable Instruments Act, 1881 remained unrebutted.

Ratio Decidendi: Additional evidence at the appellate stage cannot be permitted to enable an accused to fill gaps in the defence unless due diligence is shown or omission of the evidence would result in failure of justice; statutory presumptions under the Negotiable Instruments Act, 1881 must be rebutted by the accused through appropriate evidence, and the court is not bound to collect such defence evidence for him.

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