The court reaffirmed that additional evidence under Section 391 of the Cr.P.C. can only be admitted if it was unavailable during trial despite due diligence, ensuring a fair adjudication process.

JUDGMENT :

SUKHVINDER KAUR, J. 

1. Present petition under Section 391 of the Code of Criminal Procedure has been filed by the accused-petitioner, who was convicted by the learned trial court under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘the Act’) for dishonoring a cheque. He was sentenced to undergo simple imprisonment for a period of six months and to pay compensation of the amount equivalent to the cheque amount. The petitioner, aggrieved by the conviction and order of sentence, filed an appeal, which is currently pending before the learned Appellate Court. During the pendency of the appeal, the petitioner sought permission to place additional evidence before the learned Appellate Court by filing an application under Section 391 of Cr.P.C ., which was dismissed by the learned Appellate Court. Hence, the present revision before this Court.

2. The petitioner was convicted by the learned Magistrate under Section 138 of the Act for dishonoring a cheque. The trial court sentenced the petitioner to imprisonment and imposed a fine as stated above. Aggrieved by this conviction, the petitioner filed an appeal before the learned Sessions Court. During the pendency of the appeal, the petitioner filed an application under Section 391 Cr.P.C ., seeking to adduce additional evidence. The learned Appellate Court dismissed the said application. Aggrieved with the same, the petitioner has knocked the doors of this Court.

3. Learned counsel for the petitioner contended that the learned lower Appellate Court had erred in dismissing the application. At the time of trial of complaint under Section 138 of the Act, the petitioner filed application dated 16.9.2023 before the Senior Superintendent of Police, Fatehgarh Sahib against respondent No.2 for committing fraud and the said application was pending for inquiry which was being conducted through the Investigating Officer. The petitioner wanted to produce the said record and the other documents which were not available at the time of adducing defence evidence in the trial Court. He further contended that the said documents were very much necessary for just and proper decision of the case, which fact has been ignored by the learned Appellate Court and has prayed for setting aside the impugned order.

4. Section 391 Cr.P.C provides that an appellate court may, at its discretion, take additional evidence if it considers such evidence necessary for the just decision of the case. However, this power is not intended to allow parties to re-litigate the entire case by introducing fresh evidence. The power to take additional evidence should be exercised sparingly and only in cases where:

(i) The evidence sought to be introduced was not available at the time of trial despite due diligence; and

(ii) The evidence is essential for the just and fair decision of the appeal.

5. The petitioner has placed on record Annexure P-4, a copy of the application under Section 391 Cr.P.C . that had been moved before the learned Appellate Court for seeking permission to lead additional evidence in the appeal. By way of additional evidence, the petitioner wanted to place on record the application dated 16.9.2023 moved by him before the Senior Superintendent of Police, Fatehgarh Sahib and the original postal receipt. As the said application had been filed by the petitioner himself before the Senior Superintendent of Police, Fatehgarh Sahib, so it was very much within his knowledge at the time of adducing his evidence before the learned trial Court and had he exercised due diligence, he could have produced the same at the time of adducing of his evidence. Copy of application dated 16.9.2022 (Annexure P-5) moved to the Senior Superintendent of Police, Fatehgarh Sahib has also been placed on record. Copy of report dated 18.2.2024 of S