The crucial issue in the appeal was the payment to the applicant in the presence of a witness, and the rejection of this evidence by the trial court was a matter of evidence appreciation.

Heard Mr. A.R. Ingole, learned Advocate for the applicant, Mr. A.P. Raghute, learned Advocate for respondent No.1 and Mr. K.L. Dharmadhikari, learned Additional Public Prosecutor for respondent No.2.

2. ADMIT.

3. Heard finally by consent.

4. The applicant was original complainant in Summary Criminal Case No.6079 of 2004 decided by Judicial Magistrate First Class Court No.5, Amravati. Non-applicant M/s.Vaibhav Traders was accused in the said criminal case. Jagdish Nilkanthrao Rahate was proprietor of M/s. Vaibhav Traders. Charge was for the offence punishable under Section 138 of the Negotiable Instruments Act. Non-applicant Jagdish Rahate, proprietor of M/s. Vaibhav Traders has been convicted for the said offence and has been sentenced to suffer rigorous imprisonment for six months and to pay compensation of Rs.1,60,000/-to the applicant.

5. Non-applicant Jagdish Rahate has filed an appeal before Sessions Court at Amravati. The appeal is being heard by Adhoc Additional Sessions Judge-I, Amravati. During the course of hearing of the appeal, an application under Section 391 of the Code of Criminal Procedure made by the non-applicant/ original appellant before the Sessions Court for taking further evidence an application Exh.42 was heard and the learned Adhoc Additional Sessions Judge has permitted the non-applicant to lead additional evidence before the trial Court in respect of withdrawal of amount of Rs.49,000/-by the non-applicant from the account of his wife. The non-applicant has further been permitted to lead evidence in respect of the identity of his wife. In this respect, it may be noted here that the contention of the non-applicant before the trial Court was that an amount of Rs.50,000/-was paid by the non-applicant to the applicant after withdrawal of Rs.49,000/-from the account of his wife. It was contended that non-applicant had withdrawn Rs.49,000/-from his wife's loan account and has taken Rs.1,000/-cash from his friend Kishore. The said amount of Rs.50,000/-(Rs.49,000/-+ Rs.1,000/-) was paid to the applicant by the non-applicant. I have gone through the judgment of the learned trial Court. The learned trial Court has disbelieved this part of the evidence for the reasons stated in the judgment. It is contended before me on behalf of the non-applicant that though the non-applicant had led oral evidence in the form of testimony of Kishore to prove payment of Rs.50,000/-to the applicant he could not adduce documentary evidence and therefore, he had to make an application under Section 391 of the Code of Criminal Procedure before the appellate Court for permitting him to lead additional evidence.

6. In first place, it may be stated here that nothing prevented the non-applicant to adduce documentary evidence before the trial Court. During the course of hearing of appeal an attempt has been made at a very belated stage for no explainable reasons. It is not explained as to why the documentary evidence was not adduced before the trial Court.

7. Apart from this, the issue before the trial Court was not as to whether the amount of Rs.49,000/-was withdrawn from the loan account of wife of the non-applicant or otherwise. The issue before the trial Court was as to whether an amount of Rs.50,000/-was paid to the applicant by the non-applicant in presence of witness D.W. No.2 Kishore. The learned trial Court has disbelieved the evidence of D.W. No.2 Kishore to the extent that an amount of Rs.50,000/-was paid by the non-applicant to the applicant. Therefore, even if, it is proved at this stage or admitted by the applicant that an amount of Rs.49,000/-was withdrawn by the non-applicant from his wife's account, it will not advance the case of non-applicant in any manner. What basically he was required to establish was the payment of Rs.50,000/-to the applicant in presence of D.W. No.2 Kishore. Whether that part of the evidence was rightly rejected or not by the trial Court is matter of appreciation of evidence. The learned