IMPORTANT POINT
Appellate Court cannot set aside conviction and remand case back to trial court for recording evidence.

M.L. Mehta, J.— This is a petition under Section 482 Cr.P.C preferred by the petitioner assailing an order dated 14.10.2009 passed by learned ASJ, Karkardooma Courts in Criminal Appeal No. 13/2009. Vide this order, the Appellate Court of learned ASJ set aside the judgment of conviction of respondents herein under Section 138, Negotiable Instruments Act (“the Act” for short).

2. This petition raises a short, but important question of law relating to powers of the Appellate Court under Section 391 Cr.PC. The respondents herein were convicted under Section 138 of the Act by learned MM vide his judgment dated 17.02.2006. They carried the matter in appeal before the Appellate Court of learned ASJ. Before the Appellate Court, they filed an application under Section 391 Cr.P.C. for leading additional evidence. The same was allowed by learned ASJ vide the impugned order. While allowing this application, the learned ASJ set aside the conviction and remanded the case back to learned MM to decide the matter afresh after taking into account the additional evidence. It is this part of the impugned order of setting aside the conviction and directing the learned MM to decide the matter afresh after taking into account the additional evidence that is under challenge by way of instant petition.

3. So far as the reasoning given by learned ASJ regarding the desirability and necessity of additional evidence that was sought to be led by the respondents under Section 391 Cr. P.C. was not agitated by the respondents. Thus, I need not dwell into this aspect of the impugned order to see as to whether on merits the order of Appellate Court permitting respondents to lead additional evidence was justified or not. Assuming that the additional evidence that was sought to be led by the respondents was desirable and justified in terms of provisions of Section 391 Cr.P.C., I propose to deliberate on the powers of Appellate Court under Section 391 Cr.P.C. as also to the course that was to be followed by the Appellate Court in allowing additional evidence.

4. For appreciating the provisions of Section 391 Cr.P.C. can be reproduced as under:

“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.”

5. This section contemplates that the Appellate Court may either record further evidence itself or direct it to be taken by the trial court. The powers of the Appellate Court in permitting recording of additional evidence though unbridled, has to be within the ambit and scope of provisions of this Section. For permitting additional evidence at the stage of hearing of appeal, the Appellate Court needed to satisfy that the additional evidence that was sought to be adduced at that stage was necessary. For recording such satisfaction, it was obligatory to record reasons. The expression, “if it thinks additional evidence to be necessary” is of wide amplitude. The Appellate Court is empowered to exercise the powers to weed out the infirmities in the course of furthering substantial justice.

6. The recourse to this power cannot be made as a matter of routine on the mere asking of any party. This power needs to be exercised sparingly and for well-founded reasons. Though it is not possible to lay down