TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1648
X X X X Extracts X X X X
X X X X Extracts X X X X
....ergo rigorous imprisonment for a period of one year and also directed him to deposit fine of Rs. 6,00,000/-. Feeling aggrieved, the revisionist preferred appeal before the Sessions Judge, Pauri Garhwal being Criminal Appeal No. 25 of 2016. During the pendency of appeal, the revisionist filed an application under Section 311 of Cr.P.C., on the ground that neither he has issued the cheque in question nor the said cheque bears his signatures. It was also stated that after his statements were recorded under Section 313 of Cr.P.C., before the trial court he tried to give evidence but the trial court rejected his application vide order dated 24.06.2016 thereby closing his opportunity to lead evidence. It was also stated that during the pendency of appeal, he enquired from the bank as to whether the signatures on the cheque bears his signatures, it was informed to him that the signatures in the cheque in question are different. He, thus, prayed that the specimen signature be obtained from the bank and be sent to the handwriting expert for verification. Subsequently, the revisionist moved another application and prayed to amend the Section of the application as Section 391 of Cr.P.C., inst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 391 CrPC is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. Rajeswar Prasad Misra v. State of W.B., 1965 AIR(SC) 1887, Ratilal Bhanji Mithani v. State of Maharashtra, 1971 AIR(SC) 1630, Rambhau v. State of Maharashtra, 2001 AIR(SC) 2120, Anil Sharma v. State of Jharkhand, 2004 AIR(SC) 2294, Zahira Habibulla H. Sheikh v. State of Gujarat, 2004 4 SCC 158 and Manu Sharma v. State (NCT of Delhi), 2010 AIR(SC) 2352. 30. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal, AIR 1987 SC 1321 dealing with the issue held as under: "5. ....To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... further evidence or direct further evidence to be taken by a Court subordinate to it. But simply because an omission had taken place during the trial, the power contemplated under Section 391 of Cr.P.C., for taking additional evidence cannot be exercised by the appellate Court. In order to exercise such a power, the appellate Court must be satisfied that taking of additional evidence is necessary. While considering the question as to whether taking of additional evidence in the appellate stage is necessary, the Court should not forget the principle that the parties who could have adduced such evidence in the trial stage, should not be allowed to fill up the lacuna by adducing additional evidence in the appellate stage, as a result of afterthought. At the same time, when a request comes from the accused, the Court should also consider the question whether he had reasonable opportunity of defending himself by adducing the proposed additional evidence. The Court should also consider the question whether the additional evidence proposed to be adduced does have any relevancy or whether the prayer for permission to adduce evidence has been made only as an attempt at vexation to fish out....
X X X X Extracts X X X X
X X X X Extracts X X X X
....above. 7. Section 391 of Cr.P.C., would also be apt to discuss here, which is quoted hereinbelow:- "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." 8. The reading of Section 391 of Cr.P.C., as well as the law laid down by the Hon'ble Supreme Court in the aforesaid judgments clearly leads to form an opinion that the legislative intent in enacting Section 391 appears to be the empowerment of the appel....