TaxTMI 
TaxTMI 
2022 (6) TMI 581
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.... 3.1. The respondent No. 1-complainant lodged a complaint, being CC No. 1335/SS/2015 (151/SS/2009) for the offence punishable under section 138 of the N.I. Act, 1881 with the allegation that the complainant had paid a sum of Rs. 50,00,000/- believing the representation of the accused that the latter would execute an agreement for sale of the land situated at Nagpur. The accused could not execute an agreement for sale, as promised. Upon persuasion, the accused delivered two cheques; one of them being cheque No. 0754270 drawn for a sum of Rs. 35,00,000/- payable on 7th December 2008. Upon presentment, the said cheque ('subject cheque') was returned unencashed on account of insufficiency of funds. Despite the service of the demand notice, the accused failed to pay the amount covered by the cheque and, thus, committed the offence punishable under section 138 of the N.I. Act, 1881. 3.2. The defence of the accused was two-fold. One, there was no transaction between the complainant and the accused and the subject cheque was delivered by way of security only. Two, the complainant was guilty of interpolating the date on the cheque and thereby the instrument was rende....
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....dditional evidence sought to be tendered by the petitioner is necessary for a fair decision of the appeal. 3.5. The learned Additional Sessions Judge was persuaded to reject the application holding inter-alia that the defence of the petitioner that there was unauthorised interpolation in the date of the subject cheque was already raised by the petitioner-accused and even evidence of handwriting expert was led to buttress the said defence. In that backdrop, in the opinion of the learned Additional Sessions Judge, the said exercise was not warranted as there was already evidence on record in the form of the opinion of the handwriting expert. 3.6. Being aggrieved, the petitioner has invoked the writ jurisdiction. 4. I have heard Ms. Shilpa Pawar, the learned counsel for the petitioner and Ms. Dimple Shah, the learned counsel for the respondent No. 1, at some length. With the assistance of the learned counsels for the parties, I have also perused the material on record including the application seeking permission to lead additional evidence and a photostat copy of the cheque annexed thereto. 5. In order to properly appreciate the controversy raised in the instan....
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....se of the application of the petitioner that the additional evidence sought to be led by the petitioner would lend credence to the defence, was completely lost sight of by the learned Additional Sessions Judge. Instead, the learned Additional Sessions Judge proceeded on the premise that since the expert evidence was already on record, it was not necessary to permit the appellant to lead additional evidence. This approach of the learned Additional Sessions Judge, according to learned counsel for the petitioner, runs counter to the very object of incorporating of an enabling provision under section 391 of the Code. 8. To bolster up this submission, the learned counsel for the petitioner placed a strong reliance on a judgment of the Supreme Court in the case of Brig. Sukhjeet Singh (Retd.) MVC Vs. The State of Uttar Pradesh & Ors. (2019) 16 SCC 712, wherein, after adverting to the provisions contained in section 391 of the Code and the previous pronouncements, the Supreme Court observed that from the law laid down by the Supreme Court, it is clear that there are no fetters on the power under section 391 of the Code of the Appellate Court. All powers are conferred on the Court to se....
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..... State of Maharashtra & Anr. 2020(1) Bom. C.R. (Cri.) 707, I had an occasion to consider the nature and import of the provisions contained in section 391 of the Code, in the context of the afore-extracted text and the governing precedents. The observations in paragraph Nos. 11 to 15 are material and hence extracted below: 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. However, the discretion is controlled by two imperatives. One, the Court must come to a conclusion that the additional evidence is necessary. Two, the appellate court, if it admits the additional evidence, shall record reasons for the same. The expression, "if it thinks additional evidence to be necessary" indicates that it is not the right of a party to lead the evidence, but the evidence ought to be such which the appellate court deems necessary to be led for a just decision of the case. The emphasis appears to be more on the requirement of the court to promote justice rather than the desire of a party to lead evidence in support or negation of the charge. Undoubtedly, th....
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....he 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 re-trial or to change the nature of the case against the accused. This Court in the case of Rejeswar Prasad Misra v. State of West Bengal and another (AIR 1965 SC 1887) in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 3. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is de....
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....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 safety valve by requiring recording of reasons." (emphasis supplied) 15. The aforesaid pronouncements were again followed by the Supreme Court in the case of Ashok Tshering Bhutia Vs. State of Sikkim (2001) 4 SCC 402 and again the extraordinary and exceptional nature of the power to admit additional evidence, at the appellate stage, was underscored. The observations in paragraphs 28 and 29 read as under: "Additional Evidence: 28. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is....
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....ng the documents pertaining to the subject prosecution. 17. At this stage, the time lag of almost 9 years assumes critical significance. According to the complainant, the subject cheque was delivered in the month of December 2008. The accused asserts discovery of its photostat copy in the month of June 2017. It would be difficult to accede to the submission on behalf of the petitioner that the petitioner could not have asserted the existence of or produced the photostat copy of the cheque, despite due diligence. 18. 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 a....