IMPORTANT POINT
The power to record additional evidence under Section 391 of Cr.P.C. should only be exercised in exceptional circumstances and when the party was prevented from presenting evidence despite due diligence or when the facts giving rise to such a request came to light at a later stage during the appeal.

ORDER :

1. Challenge in this revision is to order dated 27.01.2024 passed by learned Sixth Additional Sessions Judge, Raigarh in Criminal Appeal No.129/2023 whereby learned trial Court has rejected the application submitted by the applicant under Section 391 of Cr.P.C.

2. Learned counsel for the applicant submits that the applicant has extended the hand-loan to non-applicant and to re-pay the loan amount, non-applicant has issued four cheques (subject matter of CRA No.129 of 2023 before the Court below) of different amount of his A/c No.10511321157 bearing cheque no.257753 of Rs.50,000/-, cheque No.257755 of Rs.85,000/-, cheque no.257752 of Rs.85,000/- and another cheque No.257756 of Rs.1 lakh. He contended that the cheque bearing no.257756 issued by the non-applicant was found to be proved by learned Magistrate and other three cheques have not been found to be proved holding that applicant failed to prove that the cheque was deposited in the Bank and returned by the Bank as 'dishonoured' (no return memo was placed on record issued by the bank). He contended that the order passed by learned Magistrate was put to challenge in appeal. During pendency of appeal, application under Section 391 of Cr.P.C. was filed seeking examination of the Bank manager as witness. Application was erroneously rejected. He submits that while rejecting application, purpose of provision under Section 391 of Cr.P.C. is defeated. The applicant ought to have been provided an opportunity to prove his case by examining the Bank Manger as his witness to prove that the cheque issued by the non- applicant was deposited for clearance and it was dishonoured by the Bank. In support of his contention, he places reliance upon the order passed in the case of Govind Chauhan Vs. Sriram Sonboir (CRR No.752 of 2023 and other connected matters) decided on 12.12.2013.

3. Learned counsel for non-applicant opposes the submission of learned counsel for the applicant and submits that learned appellate Court has passed detailed order and has assigned reasons for rejecting application filed by the applicant under Section 391 of Cr.P.C. In its order learned appellate Court has observed that the applicant was provided ten number of opportunities to lead evidence and on the last date fixed for recording of evidence of the applicant on 20.07.2023, the applicant himself closed his evidence. Provision under Section 391 of Cr.P.C. will not be permitted to be used to fill-up lacuna in the criminal case. It is to be used only in exceptional circumstance. Hence, there is no error in the order passed by learned Court below. In support of his contention, he places reliance upon the decision of Hon'ble Supreme Court in the case of Ajitsinh Chehuji Rathod Vs. State of Gujarat and Anr. (2024 SCC OnLine SC 77).

4. I have heard learned counsel for the parties as also perused the documents enclosed along with revision.

5. Perusal of the impugned order would show that the learned appellate Court observed that the applicant was provided ten opportunities to produce his witness/evidence and on the 10th day fixed for recording of evidence of the applicant i.e. 20.07.2023 on the statement made by the applicant, evidence of the applicant was closed.

6. Provision under Section 391 of Cr.P.C. is extracted below for ready reference:-

“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 eviden