The appellate court's discretion under Section 391 Cr.P.C. to admit additional evidence must be exercised cautiously and cannot be used to fill gaps in existing evidence.

Judgment

Mr. Harpreet Singh Brar, J.

The present petition is preferred against the impugned order dated 18.11.2015 passed by learned Additional Sessions Judge, Jalandhar vide which application filed by the petitioners under Section 391 Cr.P.C. to adduce additional evidence in Criminal Appeal bearing No. 29883 of 2013 titled as ‘Ashok Kumar Monga & Anr v. State of Punjab’ was dismissed.

FACTUAL BACKGROUND

2. The facts, briefly, are that FIR No. 456 dated 12.12.2003 under Section 420, 120-B IPC was registered against the petitioners at Police Station Division No. 6, Jalandhar on written complaint moved by respondent No. 2 and Jaskirat Singh to Senior Superintendent of Police, Jalandhar. It was alleged that property measuring 6 marla, situated at Cool Road, Jalandhar, was purchased by respondent No.2-Harpreet Singh, Jaskirat Singh and petitioner No. 2-Vijay Kumar jointly. However, the sale deed was executed only in the name of petitioner No. 2. Thereafter, written agreement dated 14.01.1992 were drawn, stating the interests of the complainants and the same was duly signed by petitioner No. 1, who happens to be the brother of petitioner No. 2. Petitioner No. 2 also executed two agreements dated 14.01.1992 in favour of respondent No. 2 and Jaskirat Singh respectively, where he agreed to sell 2 marlas each to them in exchange of full consideration amount.

3. Petitioner No. 2 along with these agreements also executed Power of Attorney in favour of persons of choice of the complainants respectively. The agreements dated 14.01.1992 and the Power of Attorneys were duly signed by petitioner No. 1 as the attesting witness. Subsequently, on 29.09.1997, petitioner No. 2 gave his Power of Attorney with regard to the disputed property to petitioner No. 1. Petitioner No. 1 further gave the Power of Attorney to one Harmit Singh son of Assa Singh on 08.10.1997. Thereafter, in connivance with each other, the petitioners sold the disputed property to one Dr. Vasudev, wife of petitioner No. 1 and Harbans Singh Chandi for an amount of Rs. 22,00,000/-.

4. After assessing the material on record, learned Judicial Magistrate Ist Class, Jalandhar convicted the petitioners for committing an offence under Section 406 IPC vide judgment dated 14.08.2012 and sentenced them as follows:

5. Aggrieved by the judgment of conviction, the petitioners preferred an appeal before Additional Sessions Judge, Jalandhar. An application was filed by the petitioners before the learned lower appellate Court to prove an agreement dated 16.07.2002, which was dismissed vide impugned order dated 18.11.2015.

CONTENTIONS

6. Learned counsel for the petitioner inter alia contends that learned Additional Sessions Judge, Jalandhar has dismissed the application filed by the petitioner under Section 391 Cr.P.C. vide order dated 18.11.2015 without appreciating the settled law on the subject that the appellate Court has a very wide power in the matter of obtaining additional evidence. He relies upon judgments passed by Hon’ble Supreme Court in Rambhau vs. State of Maharashtra, 2001(2) RCR (Criminal) 721 and Zahira Habibulla H. Sheikh and another vs. State of Gujrat and others, 2004(2) RCR(Criminal) 836.

7. The agreement dated 16.07.2002 was not in the notice of the petitioners and as such the same could not be produced during trial and it was found lying in the store room. While issuing notice of motion, the following order was recorded:-

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Challenge in this petition, filed under Section 482 Cr.P. C. is to order dated 18.11.2015, passed by learned Addition