The power to receive additional evidence under Section 391 of the Cr.P.C. should be exercised sparingly and only in exceptional cases where it is necessary for rendering substantial justice.

ORDER

1. The present Criminal Petition is preferred against an Order dated 25.04.2022 passed in Crl.M.P.No.36 of 2021 in Criminal Appeal No.24 of 2021 on the file of the Court of III Additional Sessions Judge, Rajampet, Kadapa District.

2. Heard Mr. Y.Srinivasa Murthy, learned Senior Counsel appearing for the petitioner and Mr.Balaji Medamalli for respondent No.1 and learned Assistant Public Prosecutor for respondent No.2.

3. The petitioner herein is the accused in C.C.No.31 of 2019 on the file of the Court of Judicial Magistrate of I Class, Railway Koduru. Pursuant to the complaint lodged by the 1st respondent herein, the petitioner was charged with the offence under Section 138 r/w 142 of Negotiable Instruments Act. The learned Magistrate vide Judgment dated 22.04.2021, convicted the petitioner after a full-fledged trial and sentenced him inter alia to undergo imprisonment for a period of one year while awarding compensation of Rs.10,00,000/- to the complainant/1st respondent.

4. Aggrieved by the same, the petitioner/accused preferred an appeal in Criminal Appeal No.24 of 2021 before the learned III Additional Sessions Judge, Rajampet, Kadapa District. In the said appeal, the petitioner moved a petition i.e., Crl.M.P.No.36 of 2021 under Section 391 of Code of Criminal Procedure (for short 'Cr.P.C.') to permit him to produce documents i.e., a copy of bank statement as additional evidence. The 1st respondent/complainant opposed the said petition by filing a counter. The learned appellate Court by its Order dated 25.04.2022 dismissed the same. Seeking to quash the said Order, the present Criminal Petition came to be filed.

5. The learned Senior Counsel, inter alia submits that three post dated cheques dated 13.08.2018 were alleged to have been issued by the petitioner/accused towards discharge of amount allegedly borrowed from the 1st respondent/complainant and to disprove the case of the 1st respondent/complainant, a copy of the bank statement for the period from 01.04.2011 to 31.03.2012 was filed and the same was sought to be received as additional evidence. He submits that if the said statement is taken into account, outcome of the case would be changed. While submitting that the petitioner/accused could not file the said statement before the learned Magistrate as the same could not be secured at the relevant point of time, the learned counsel would urge that non-filing of bank statement is neither willful nor wanton and in exercise of the powers conferred under Section 391 of Cr.P.C., the learned appellate Court ought to have allowed the petition. Stating that 391 of Cr.P.C., is akin to Order 41, Rule 27 of Cr.P.C., the learned counsel would contend that in fact, a fair consideration of Section 391 of Cr.P.C., would go to show that for the purpose of receiving a additional evidence in Criminal case, the applicant/petitioner need not establish that despite exercise of due diligence, he could not produce the additional evidence before the Order against him was passed. The learned Senior Counsel contends that in the present case, the appellate Court failed to record the reasons as to why the additional evidence sought to be marked was not necessary. He would also further contend that the learned appellate Court committed a grievous error in taking up the Miscellaneous Petition and disposing it of independently through the impugned Order. In other words, it is his submission that the lower appellate Court is required to dispose of the petition to receive additional evidence along with the main appeal. The learned counsel would also contend that the appellate Court failed to exercise jurisdiction vested in it and its approach is contrary to the well settled principles of law, that to meet the ends of justice the learned appellate Court ought to have allowed the application in question. He further submits that throwing out the evidence at the threshold is contrary to law and the Order under challenge is liable to be set aside on that