1. The present Criminal Misc. Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused to quash and set aside the impugned order dated 24/11/2008 passed below Exh.24 in Criminal Appeal No.48 of 2007 by learned Additional Sessions Court and Fast Track Court, Gandhinagar, by which, prayer of the applicant herein to lead an additional evidence at appellate stage in exercise of power under Section 391 of the Code of Criminal Procedure, has been rejected.

2. Facts leading to the present application, in nutshell, are as under:

Respondent No.2 herein – original complainant had instituted the complaint being Criminal Case No.1041 of 2005 against the applicant herein – original accused in the Court of Judicial Magistrate (First Class), Gandhinagar for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheque No.409897 for Rs.7,00,000/- and cheque No.138879 for Rs.50,000/-. That the applicant herein came to be tried for the offence punishable under Section 138 of the Negotiable Instruments Act for dishonour of cheques in question. It was the specific case on behalf of the applicant herein – original accused that the aforesaid cheques in question were not issued by him and were not signed by him and were not drawn from the Bank Account maintained by him. In support of his above submission, he produced Certificate issued by the Manager of the Punjab National Bank at Exh.51 and Statements of Bank Account, from which, the cheques in question were drawn. However, learned Magistrate did not accept the same on the ground that the applicant herein has failed to rebut the same by leading evidence. Thereafter, learned Magistrate by impugned judgement and order dated 08/08/2007 convicted the applicant herein for the offence punishable under Section 138 of the Negotiable Instruments Act and directed the applicant herein – original accused to undergo simple imprisonment for six months and imposed fine of Rs.3,000/- and further directed the applicant herein – original accused to pay Rs.7,50,000/- to the original complainant towards compensation.

3. Being aggrieved by and dissatisfied with the judgement and order of conviction dated 08/08/2007 passed by learned Additional Civil Judge and Judicial Magistrate First Class, Gandhinagar in Criminal Case No.1041 of 2005, the applicant herein – original accused had preferred Criminal Appeal No.48 of 2007 before learned Sessions Court, Gandhinagar. That in the said appeal, the applicant herein submitted application Exh.24 requesting the learned Appellate Court to permit the applicant herein to lead the additional evidence and to examine the Manager of the Punjab National Bank, to prove that the cheques in question, which were dishonoured, were not signed by the applicant herein and the said cheques in question were not drawn from the Bank Account maintained by the applicant herein – original accused. That the said application at Exh.24 has been rejected by the learned Appellate Court by holding that at the relevant time during the trial, the applicant herein – original accused was given an opportunity to lead the evidence and rebut the presumption under Section 138 of the Negotiable Instruments Act. Therefore, he cannot be permitted to fill up the lacuna at the appellate Stage. Learned Appellate Court held that the applicant herein could have proved the same by leading the evidence at the relevant time, which the applicant has failed and therefore learned Appellate Court has rejected the said application at Exh.24. Being aggrieved by and dissatisfied with the impugned order passed by learned Appellate Court in rejecting the said application at Exh.24 in Criminal Appeal No.48 of 2007 and in not permitting the applicant herein to lead additional evidence in exercise of power under Section 391 of the Code of Criminal Procedure, the applicant herein – original accused has preferred the present Cr