Additional evidence in cheque dishonour appeals may be allowed to test material witnesses and rebut the statutory presumption.

In a prosecution under Section 138 of the Negotiable Instruments Act, additional evidence in appeal may be permitted under Section 391 CrPC where it is essential to secure the ends of justice and avoid failure of justice. The court noted that the accused may rebut the statutory presumption through cross-examination and defence evidence, and that the complainant had not been cross-examined while a material transaction involving the complainant's mother remained unexplained on the record. The request to recall the complainant for cross-examination and to examine the complainant's mother as an additional witness was allowed.

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Issues: Whether, in an appeal arising from a conviction under the Negotiable Instruments Act, additional evidence could be permitted under Section 391 of the Code of Criminal Procedure, 1973 by recalling the complainant and examining the complainant's mother as an additional witness.

Analysis: The petition for additional evidence was sought on the basis that the complainant's mother had allegedly transferred money to the accused and had also issued a cheque in favour of the accused, a transaction which was not reflected in the complainant's case as presented at trial. The evidence already on record did not explain how the cheque issued by the complainant's mother came into the accused's hands, and the complainant had not been cross-examined. In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, the accused is entitled to dislodge the statutory presumption by material elicited in cross-examination and by appropriate defence evidence. Additional evidence under Section 391 of the Code of Criminal Procedure, 1973 may be received where it is necessary to prevent failure of justice, and the power is to be exercised sparingly but without fetters when the proposed evidence is essential for a just decision.

Conclusion: The request for additional evidence was allowed, and the accused was permitted to recall the complainant for cross-examination and to examine the complainant's mother as an additional witness.

Ratio Decidendi: Additional evidence in appeal may be permitted when it is necessary to secure the ends of justice and to prevent failure of justice, especially where cross-examination of a material witness is essential to test the prosecution case and to rebut the statutory presumption in a Section 138 prosecution.

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