JUDGMENT :

Harpreet Singh Brar, J. (Oral)

CRM-311325-2018 in CRM-A-1429-MA-2017, CRM-31062-2023 in CRM-A-1433-MA-2017, CRM-31137-2023 in CRM-A-1450-MA-2017, CRM-308022023 in CRM-30802-2023 in CRM-A-1469-MA-2017, CRM-30848-2023in CRM-A-1482-MA-2017 and CRM-31074-2023 in CRM-A-1582-MA-2017

These are the applications under Section 391 of the Cr.P.C. for leading additional evidence in the form Annexures A-11 to A-15.

Learned counsel for the applicant contends that the learned Judicial Magistrate First Class, Jalandhar acquitted the respondents vide judgment dated 21.04.2017 primarily on the ground that the appellant has failed to prove the business dealings between the parties. The applicant-appellant has also filed a Civil Suit No. 1234/14 titled 'M/s KLMN Enterprises v. M/s Roshan Agro Steel Mills and another' for recovery of Rs. 15,89,977.40 from the respondents along with interest wherein Narinder, Tax Assistant, Officer of Principal Commissioner of Income Tax, Jalandhar appeared as PW5 and proved Annexures A-12 to A-15. Amongst these documents is Annexure of Sundry Creditors as on 31.03.2014(Annexure A-13) submitted by respondent no. 2-Balram Gupta wherein Rs. 14,03,476.40/- has been shown as due towards the applicant. He further submits that the applicant was not aware of the existence of these documents during the trial and has procured copies of the same from the Court of Civil Judge (Senior Division), Jalandhar. Since these documents (Annexure A-12 to A-15) are essential for just adjudication of the present application-appeal, learned counsel prays for them to be read into evidence.

This Court has heard the learned counsel for the applicant and perused the record, however, remains unsatisfied as to why the additional evidence being sought to be introduced at this stage could not have been led at the appropriate stage during trial. The applicant cannot be allowed to take shelter of Section 391 Cr.P.C. for its lack of due diligence.

Recently, two Judge bench of the Hon'ble Supreme Court in Ajitsinh Chehuji Rathod v. State of Gujrat and another Criminal Appeal @SLP(Crl.) No.16641 of 2023 decided on 29.01.2024, speaking through Justice Sandeep Mehta, has held as follows:

'9. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice.'

The complaint in the instant case was instituted in the year 2014. The documents being sought to be introduced as additional evidence came to the knowledge of the applicant after they were introduced in the civil suit for recovery, also instituted in the year 2014. Therefore, the documents were available but it was for the lack of due dilligence on the part of the applicant that they were not introduced during the trial.

The Himachal Pradesh High Court in Kewal Krishan v. State of H.P. and another 2023(2) Cri.CC 455, speaking through Justice J.R. Dua has opined as follows:

'4(ii) In (2019) 16 SCC 712 [Brigadier Sukhjeet Singh (Retired) MVC v. State of Uttar Pradesh & Ors], the Hon'ble Apex Court held that the key words in Section 391(1) are "if it thinks additional evidence to be necessary". The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. Power to take additional evidence under Section 391 Cr.P.C. is with the object of appropriate decision of the appeal by the appellate Court to secure ends of justice. The Hon'ble Apex Court noted the decision rendered in (2001) 4 SCC 759 (Rambhau v. State of Maharashtra), wherein a word of caution was introduced for guidance "that additional evidence cannot and ought not to be received in such a wa