Point of Law : Application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause.

JUDGMENT :

1. Rule returnable forthwith. Mr. Shakeel Qureshi, learned advocate waives service of notice of rule for and on behalf of the respondent No.2 in Special Criminal Application No. 1925 of 2017 and Mr. Rushabh Shah, learned advocate waives service of notice of rule for and on behalf of the respondents No. 1, 2 and 3 in Special Criminal Application No. 4465 of 2017.

2. By way of these applications, applicants in both these applications have approached this Court under Article 226, 14 and 227 of the Constitution of India as well as Section 482 of Cr.P.C 1973 (For short “The Code”) seeking various reliefs.

3. In Criminal Misc. Application No. 1925 of 2017, the applicants have requested to quash and set aside the order dated 8th March, 2017 passed below exh. 18 in Criminal Appeal No. 17 of 2016 by the learned 2nd (Ad-hoc) Additional District & Sessions Judge, Valsad qua depositing of 25% of the cheque amount as precondition.

4. The applicant, in Special Criminal Application No. 4465 of 2016, has requested to quash and set aside the order passed by the learned 2nd (Ad-hoc) Additional District and Sessions Judge, Valsad below exh. 18 in Criminal Appeal No. 17 of 2016 permitting the respondents -accused to produce additional evidence before the trial Court by allowing application below exh.18.

5. In Special Criminal Application 1925 of 2017, the applicant-accused was convicted for the offence punishable under Section 138 of Negotiable Instrument Act as alleged in the complaint u/s 138 of Negotiable Instrument Act registered by respondent No.2 for dishonour of cheque bearing No. 000239-000243 dated 9th June, 2014 each of Rs.50,00,000/- (Rupees Fifty Lacs only).

6. It appears that trial Court, vide judgment and order dated 8th March, 2017, convicted the applicants for the offence punishable under Section 138 of N.I.Act and sentenced to undergo simple imprisonment for 2 years and fine of double amount of cheques i.e (Rs.2,50,00,000 x 2 = Rs.5,00,00,000/- ) (Rupees Five Crores only) imposed to accused No.1- Keshar Impex, being partnership firm, which is to be paid by the accused No.2 and 3 equally being partners of accused No.1 and out of which, 90% the fine amount was ordered to be given to the complainant as compensation as per section 357 of Code of Criminal Procedure 1973. In case of failure of paying fine amount, further imprisonment of 6 months was awarded.

7. Being aggrieved and dissatisfied with the order of conviction, the applicants filed an appeal being Criminal Appeal No. 17 of 2016 before the Sessions Court at Valsad. During the pendency of the appeal, applicants filed an application below exh.18 to lead the additional evidence under section 391 of the Cr.P.C. On the basis of such application, it was contended that the cheque in dispute was handed over to Mr. Samir Desai by the applicants who was employee of the complainant by way of security. The same cheques were misused by the complainant and false complaint was lodged by him. As Mr. Samir Desai was material witness and he had received letter on 9th June, 2014 on behalf of the complainant, it was requested to permit the applicants accused to examine him before the trial Court and permit to produce additional evidence.

8. Mr. Rushabh Shah, learned advocate appearing for Mr. H.H.Dave and Mr. A.H.Dave, learned advocates for the applicants in Special Criminal Application No.1925 of 2017 has submitted that the order of the learned Sessions Judge qua depositing 25% of the cheque amount is erroneous and without jurisdiction while deciding application under Section 391 of the Code of Criminal Procedure [‘Code’ for short]. It is further submitted that the sentence is already suspended by the Court and a condition of depositing 25% of the cheque amount is imposed in an application under Section 391 of the Code, which is, prima facie, erroneous and requires to be quashed and set aside. It is further submitted that an application Exh.18 was given by the present applicants under Secti