2024 (2) TMI 491

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....ifficulty of the accused, had paid a sum of Rs. 1,00,000/- as a friendly loan to the accused in the mid of September, 2016. The accused had assured the complainant that the same will be returned by August, 2017 and in discharge thereof, the accused had issued a post-dated cheque bearing No. 263599, dated 10.08.2017, for Rs. 1,00,000/- drawn on ICICI Bank Ltd., Sector-9, Rohini Branch, Delhi, being the payment of the aforesaid friendly loan amount in favour of the complainant. The accused had assured the complainant that the aforesaid cheque will be encashed upon its presentation. It is stated that the complainant had presented the cheque in question before his banker i.e. Punjab National Bank in Gokhle Market Branch, Delhi, for encashment but to the utter surprise and dismay of the complainant, the said cheque was returned back as dishonored with the remarks "Funds Insufficient" vide Debit Advice dated 14.08.2017 issued by the banker of the complainant. It is stated that the complainant had apprised the said fact of dishonouring the cheque in question to the accused and the accused had requested the complainant for its re-presentation after one month and had assured the complainant....

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....ent no. 2 has opposed the petition stating that several opportunities were granted to the appellant for cross-examination of complainant-respondent by learned Trial Court and further, learned Trial Court had passed detailed and reasoned order on application under section 311 CrPC while dismissing the said application moved by the appellant-accused. 5. This Court has heard arguments addressed on behalf of both the parties and has perused the material on record. 6. In the present case, the impugned order was passed on 24.07.2023 vide which the application filed under Section 391 of Cr.P.C. on behalf of the present petitioner, who is accused before the learned Trial Court, was dismissed. The relevant portion of impugned order reads as under: "8. In the impugned judgment of conviction, learned Trial Court had held that the appellant herein had failed to rebut the mandatory presumption of law and has also failed to controvert the story of the complainant or to establish his own story. It is also observed in the said impugned order that the accused in his plea of defence recorded on 07.08.2019 has admitted his signature on agreement in the month of July, 2017 and his signa....

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....pellant herein did not examine the said Upender Gupta in his defence evidence before learned Trial Court to prove his defence. In the present application also, the appellant has not stated that he want to examine the said Upender Gupta as additional evidence in the present appeal. The appellant want to cross-examine further complainant-respondent as an additional evidence. 10. In view of above discussion, I do not find merits in the present application under section 391 of the CrPC, and therefore, same is rejected." 7. In the given facts and circumstances, it will be useful to refer to Section 391 of Cr.P.C., which is reproduced as under: "S. 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 t....

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....Trial Court. The Petitioner had preferred an Appeal bearing No. 264/2022 titled as "Rajesh Marwah Vs. Ankur Rastogi", and had then filed an application under Section 391 of CrPC, which was dismissed vide order dated 24.07.2023 by the learned . 12. Upon thorough examination of the evidence presented, including the cross-examination of the complainant Ghanshyam Dass, this Court notes that that the complainant Ghanshyam Dass was extensively questioned with regard to his association with his attorney and the individual named Upender Gupta. During his cross-examination on 26.07.2019, the complainant disclosed that he has known accused Rajesh Marwah for approximately 7-8 years through his attorney, Mr. Upender Gupta. Furthermore, it was revealed that the complainant has had a relationship with Mr. Upender Gupta for approximately 15-20 years, and had entrusted him with the authority to settle the matter at hand through a Special Power of Attorney (SPA). Detailed inquiries regarding the transactions involved in the case and the roles of both Upender Gupta and the complainant Ghanshyam Dass were addressed during the cross-examination of CW-1. Therefore, this Court acknowledges that the c....