IMPORTANT POINT
The appellate court's power to admit additional evidence under Section 391 CrPC is limited to exceptional cases where justice necessitates it.

JUDGMENT :

1. The present revision petitions under Section 397/401 Cr.P.C have been filed against the order dated 13.11.2024 passed by learned Additional Sessions Judge NO.2, Jodhpur metropolitan whereby, the application preferred by the petitioner under Section 391 Cr.P.C. for adducing evidence was dismissed.

2. Brief facts of the case are that the respondent lodged a complaint under Section 138 of the Negotiable Instruments Act, against the petitioner, whereupon a case bearing no. 75/2015 came to be registered against him before the learned Special Metropolitan Magistrate (N.I. Act Cases) No.4, Jodhpur metropolitan. After due course of trial, the learend trial court convicted the petitioner for offence under Section 138 of N.I. act vide judgment dated 13.02.2019. Thereafter, the petitioner preferred an appeal before the court of Sessions Judge, Jodhpur metropolitan being Appeal No.22/2019. During the pendency of criminal appeal, the petitioner filed an application under Section 391 Cr.P.C. for examination of cheque and again recording the statement of complainant Jitendra Acharya. The learned appellate court dismissed the said application vide order dated 13.11.2024. Hence, this revision.

3. Counsel for the petitioner submits that the appellate court has committed grave error of law in dismissing the application filed by the petitioner under Section 391 Cr.P.C inasmuch as the document is vital for just decision of the case. It is argued that the petitioner has raised question with regard to authenticity of the cheque as the complainant has filled in the cheque with his own hand and same is required to be examined. It is prayed that dismissal of the application under Section 391 Cr.P.C to bring on record essential piece of evidence, will result into grave injustice to the petitioner and therefore, the same is liable to be allowed.

4. Per contra, learned Public Prosecutor supported the impugned order and argued that after conclusion of trial, at the appellate stage, the petitioner is seeking to produce the said documents only with an intention to delay the matter. Therefore, the appellate court has rightly dismissed the application filed under section 391 CrPC which does not call for any interference from this Court.

5. I have considered the rival contentions of the parties and carefully gone through the documents on record.

6. At the outset it is relevant to discuss section 391 of CrPC which is quoted herein below :-

“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.”

7. The reading of Section 391 CrPC, so also proposition of law as laid down by the Hon’ble Supreme Court clearly leads to form an opinion that the legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the parties and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in allowing further evidence under Section 391. However, this power has to be exercised sparingly and in exceptional cases where the court is satisfied that directing additional evidence would serve the interest of justice. In the case in hand, the learned Court after taking