JUDGMENT:

Pankaj Jain, J.(Oral) - Present petition under Section 482 Cr.P.C. impugning order dated 11.08.2023 (Annexure P9) passed by Ld. Additional Sessions Judge, Ludhiana in appeal No.26/2017 whereby the application filed by petitioners under Section 391 Cr.P.C. has been rejected.

2. Petitioner No.2 earned conviction in a complaint filed against him for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881vide judgment dated 14.12.2016 (Annexure P5). While leading defense evidence before Ld. Trial Court the petitioners sought to summon certain police officials who as per them have conducted an inquiry on their complaint filed with the police alleging forgery of the cheques. After the police officials failed to appear, the evidence of the petitioners was closed vide order dated 16.03.2016. Against the said order, the petitioners preferred a revision. Admittedly, the Revisional Court granted three opportunities to the petitioners to lead their defense evidence. It is being claimed by counsel for the petitioners that despite having been served the police officials they failed to appear and thus after expiry of those three opportunities the judgment of conviction was passed. In appeal, the instant application under Section 391 Cr.P.C. was preferred, whereby the petitioners have sought to summon the same official witnesses in their defense evidence. The application now stands rejected by the Appellate Court holding that the evidence being sought to be produced by resorting to Section 391 Cr.P.C. has no effect on merits of the case.

3. Mr.Behl, counsel for the petitioners while assailing order passed by the Appellate Court has contended that the Appellate Court failed to appreciate that petitioners were not granted sufficient opportunities before the Trial Court to lead their defense evidence and thus the present application was moved and the same would fall within the ambit of Section 391 Cr.P.C. which has been interpreted by the Apex Court in the case of Brig.Sukhjeet Singh (Retd.), Mvc vs. The State of Uttar Pradesh , 2019(16) SCC 712 as under:-

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20. We have considered the submissions of the parties and have perused the records.

21. In the present appeal, we are concerned only with the rejection of application filed by the appellant under Section 391 CrPC before the Sessions Judge in the criminal appeal filed by him against the conviction order, whether the Sessions Judge committed error in not exercising power under Section 391 CrPC to permit the appellant to lead additional evidence is a question to be answered. Whether the High Court committed error in not exercising power under Section 482 CrPC so as to secure the ends of justice?

22. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 CrPC empowers the appellate court to take further evidence or direct it to be taken. Section 391 is as follows:

"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