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TaxTMI 
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2019 (11) TMI 1200
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....e Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'). It was the case of the complainant that the complainant had supplied the computer hardware and peripherals collectively called as 'Kit', 68 in numbers. Towards the payment of the price of the said kits and in discharge of the liability, the accused had drawn the cheque bearing No.96151 on 26-11-2012. On presentment, the cheque was returned un-encashed on account of insufficiency of funds. Despite the service of the demand notice upon the accused on 12th December 2012, the accused failed to pay the amount covered by the cheque within the stipulated period. Hence, the complainant lodged the complaint leading to S.C.C. No.0401331 of 2013. (b) The learned Judicial Magistrate, First Class, 32nd Court, Pune, by judgment and order dated 30th July 2015, returned the finding of guilt. The accused was convicted for the offence punishable under section 138 of the Act, 1881, and sentenced to suffer simple imprisonment for one year. The accused was further directed to pay the compensation of Rs. 39,70,620/- with default stipulation. The accused-applicant challenged the said order of conviction and sentence before the learne....
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....tional evidence, were necessary for a just decision of the case. Secondly, the learned Sessions Judge was in error in not adverting to the fact that the accused had already put the defence during the course of cross examination of the complainant and, thus, the accused was not trying to bring something on record by way of an after-thought. Lastly, it was urged that having regard to the provisions contained in section 391 of the Code, which empowers the appellate court to take additional evidence, the learned Session Judge could not have rejected the application when the accused had demonstrated that the evidence sought to be led by the accused was necessary for obviating failure of justice. 7. As against this, Ms. Trupti Shetty, the learned counsel for the respondent No.2-the original complainant would urge that the impugned order does not warrant any interference. On a bare perusal of the application, apart from the alleged inadvertence on the part of the learned advocate, no other ground has been urged in justification of the prayer for leading additional evidence. The resort to the provisions contained in section 391 of the Code cannot be had for filling up the lacuna, urged th....
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....of the Code, it would be apposite, at this stage, to extract the provisions of section 391 and consider the import thereof. Section 391 of the Code reads as under :- "391. Appellate Court may take further evidence or direct it to be taken. : (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry." 11. The text of sub-section (1), on a plain reading, indicates that a wide discretion is conferred in the appellate court to either take or direct to be taken the additional evidence. Howeve....
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....ceived as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise..............." (emphasis supplied) 13. The aforesaid pronouncement in the case of Rajeswar Prasad Misra (Supra) was followed by the Supreme Court in the case of Rambhau & Anr. Vs. State of Maharashtra (2001) 4 SCC 759, and a note of caution was administered. The court observed, in clear and explicit terms, that the provisions contained in section 391 cannot be restored to, to fill up the lacuna, but to sub-serve the ends of justice. It was in terms observed that the additional evidence cannot be and ought not to be received in such a way so as to cause any prejudice to the accused. The observations of the Court in paragraphs 2 to 4 are of material significance. They read as under:- "2 A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nat....
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....ellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49 There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court................." 50 In Rambhau and Anr. Vs. State of Maharashtra (2001 (4) SCC 759) it was held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the Legislature had put the safe....
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....cate for the accused. Paragraph 5 of the application indicates both the documents which were sought to be tendered by way of additional evidence and the reason for non-production before the Magistrate. It is thus extracted below :- "5 That your applicant states that the Learned Lawyer who conducted the case on behalf of the Applicant before the Learned Trial Court has inadvertently omitted to tender certain documentary evidences being a General Diary lodged by the Applicant on 21st November 2012 with the Bowbazar Police Station, Kolkata and also the complaint sent through Speed Post through the Bowbazar Police Station, Kolkata, certain receipts whereby the complainant/respondent No.2 acknowledged the receipt of the return kits, documents showing that a blank cheque was issued by the Appellant/Applicant as security one in favour of the complainant/Respondent No.2, quotations and purchase bills of the similar kits collected by the Appellant/Applicant at the relevant point of time showing that the complainant/ Respondent No.2 unnecessarily charged extra from the Appellant/Applicant and the reply dated 4th January 2013 given by the Learned Advocate for the Appellant/ Applicant....
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....ained in sections 118 and 139 of the Act, 1881, onus lay upon the accused to dislodge the presumptions that the cheque was drawn for consideration and in discharge of a legally enforceable debt or liability. Whether the accused succeeded in rebutting the said presumptions of law warrants adjudication. However, mere failure to place on record the copy of the reply could not have been construed as a failure to dislodge to the presumption especially when it was the claim of the complainant that the accused had replied the statutory demand notice raising false contentions. 20. The situation which, thus, obtains is that so far as the endeavour of the accused to lead evidence in the nature of the documents to demonstrate that the cheque was drawn by way of security only and to contest the quantum of liability for which the cheque was allegedly drawn, the omission to place on record the said documents before the trial court, is clearly in the realm of lacuna for reasons more than one. Firstly, it is not the case of the accused that those documents were not in existence or he was not aware of the contents of those documents. Secondly, the accused having taken the defence by putting the qu....
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....n the case of M/s. Gandhi Sales (A Partnership Firm now dissolved) through its erstwhile partner Pankaj Gandhi & Ors. Vs. Prakash M. Khandelwal 2017 All. M.R. Criminal 4590, wherein the learned Single Judge has observed, inter-alia, that the scheme of section 391 of the Code does not contemplate production of documentary evidence. Plain reading of section 391 of the Code clearly shows that the word 'evidence' used in the sub-sections of section 391 is oral evidence only. 23. The aforesaid judgment proceeds on the premise that the word 'take', with its grammatical variations, controls the word 'evidence' in subsections (1) to (4) of section 391. With a lot of respect, I find it rather difficult to agree with the aforesaid proposition. The reasons are not far to seek. Firstly, such an intendment and restrictive scope of section 391 is not discernible from the text of the said section, which, as adverted to above, confers a wide discretion on the appellate court. Secondly, under the Evidence Act, 1872, the word "Evidence" means and includes :- "(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, suc....