Honble GUPTA, J.–The revision petition is directed against the order dt. 22.10.97 passed in an appeal against conviction, whereby the Addl. Sessions Judge rejected the application of the petitioner under Section 391 Cr.P.C. On 25.1.99 the petitioner filed an application for treating the revision petition as misc. petition which was allowed.

(2). The relevant facts of the case are these. Jugal Kishore had issued a cheque for Rs. 71,000/- on 7.4.91 drawn on Punjab National Bank, Udaipur in favour of the complainant-non- petitioner Roshan Lal for repaying the debt. Roshan Lal presented the cheque to the Bank but it was dishonoured. The cheque was again presented but again it was dishonoured. Jugal Kishore after giving notice to the petitioner filed a complaint under Section 138 of the Indian Negotiable Instrument Act. After the trial was held, petitioner Jugal Kishore was convicted by the Magistrate vide judgment dt. 4.8.94. He preferred an appeal against the said judgment to the court of Sessions which was transferred to the Additional Sessions Judge No.3, Udaipur. There the petitioner made an application under Section 391 Cr.P.C. pray- ing that the petitioner be allowed to file seven documents viz., copy of the civil suit filed by Roshan Lal (complainant), a copy of the written statement filed by the accused petitioner, copy of the civil suit filed by the complainant against Deepak Bharti, a copy of the written statement filed in that case, a copy of the statement of Roshan Lal in a civil suit referred to above, a copy of the agreement entered into between Roshan Lal and Deepak Bharti, a copy of the account prepared by Govind Ram, and a copy of the judgment in a case under Section 302 IPC in which Roshan Lal was convicted. In his reply, complainant Roshan Lal opposed the application. After hearing the learned counsel for the parties, the Addl. Sessions Judge rejected the application of the petitioner-accused vide order dt. 22.10.97.

(3). Mr. Shishodia contended that the documents referred to in the application of the petitioner are relevant to the just decision of the appeal preferred by him, and therefore, the Appellate Court ought to have allowed the documents.

(4). Mr. Joshi, on the other hand, contended that Section 391 Cr.P.C. does not contemplate the production of documentary evidence, at the appellate stage. According to him, it is only the oral evidence that can be permitted to be produced by the Appellate Court under Section 391 Cr.P.C. His further contention was that the documents are not at all relevant for the decision of the appeal preferred by the accused-petitioner. He canvassed that the documents, which the petitioner wants to produce are not public documents and they cannot be read unless proved by the oral evidence and as the accused-petitioner failed to produce them during trial, the Appellate Court was perfectly justified in rejecting the application.

(5). There is merit in the contention of Mr. Joshi that Section 391 Cr.P.C. does not contemplate the production of documentary evidence. A reading of sub-sections of Section 391 Cr.P.C. clearly shows that the word `evidence used in these sub-sections is the oral evidence. Section 391 is reproduced hereunder:-

``391. Appellate Court may take further evidence or direct it to be ta- ken.-(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

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