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2023 (10) TMI 1356
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....nt petitioner that when the impugned cheque is produced before learned trial court the petitioner denied signature on that cheque. Further, With a view to prove the authenticity of the signature, the petitioner has also made an application dated 13.06.2019 with prayer to compare his specimen signature with the signature on impugned cheque and also pray for the handwriting expert opinion. The above application was rejected by the trial court on the same day i.e on 13.06.2019 on the ground that the present petitioner (original accused) has mala fide motive of delaying the proceedings. 2.3 It is the case of the present petitioner that he made an application to examine the officer of the post office to prove non-receipt of notice sent by the respondent no.2 (original complainant). However, no examination was done to check authenticity of the letter obtained from the post office by respondent No. 1. The learned trail court erroneously had given finding below Exh.16 without examining the authority who issued the above letter to the complainant. The same was also taken into consideration while convicting the present petitioner. 2.4 The present petitioner submits that after the convi....
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....ed by the learned trial Court and thereafter, the learned Session Court by dismissing application Exh.35. He would further submit that the impugned order is unjust. Thus to secure the ends of justice, the petition was required to be taken into consideration. 5. The above submission is made to issue notice claiming that the learned Session Court has committed serious error. 6. On the other hand, learned APP while supporting the impugned order would submit that the petitioner has approached the learned appellate Court after gross delay. He would further submit that the petitioner was well within the knowledge i.e. application Exh.38 was rejected by the learned trial Court, but he has not challenged the said order before the learned appellate Court at the relevant time and allowed the trial to continue. Therefore, in those circumstances, the order passed below Exh.38 has attained finality and now, cannot be put into motion by way of seeking additional evidence. 7. The above submission is made to dismiss the petition, in limine. 8. Having heard learned advocates for both the sides, what appears that while passing order below application Exh.35 in Criminal Appeal No.153 of 2....
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....gnature on the disputed cheque. It transpires that the complainant submitted his examination-in- chief before leamed Trial Court vide Exh. 4 and the complainant was cross-examined by the leamed advocate for the appellant- accused wherein the complainant in his crossPage 5 of 9 examination the Stated by specifically stated that accused brought the cheque after filling the particulars of the cheque and signature was done in his presence. 7. The Honourable Supreme Court in the case of Ashok Tshering Bhutia Vs. State of Sikkim, (2001) 4 SCC 402, made observations in paragraphs 28 and 29 which reads 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 satisfied that directing additional evidence would serve the interests of justice I would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard of fair play, Justice and the well- being of societySuchen pauon for taking additional evidence must be decided objective ....
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.... of sec. 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully as accused where the court through some carelessness or ignorance has omitted to record the circumstances essential to the elucidation of truth, the exercise of power is desirable. [See: Zahira v State (2004)4 SCC 158 ]. 10. In Rajeswar Vs. State reported in AIR 1965 SC 1887, the Hon'ble Apex Court observed thus:- "The power to take additional evidence should not be exercised for the purpose of filling a gap in the prosecution case when the necessary evidence was available to the prosecution at the hearing and ought to have been produced." 11. In Beer Singh v State AIR 1978 SC 59, it has been observed that additional evidence cannot be taken to bridge the gap. The observation of the Hon'ble Apex Court is as under:- "The power of appellate court to take The power of appellate court to take additional evidence has to be exercised very sparingly. The additional evidence must be necessary not because it would be impossible to pronounce the judgment but because there would be failure of justice wi....