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2021 Supreme(Sikk) 61
IN THE HIGH COURT OF SIKKIM : GANGTOK
BHASKAR RAJ PRADHAN, J.
Trilochan Kapoor Sharma, S/o. Late Hari Singh Sharma - Appellant
Versus
State of Sikkim - Respondent
I.A. No. 4 of 2020 In Crl. Appeal No. 40 of 2018
Decided On : 02-09-2021
For the Appellant :Mr. B. Sharma, Senior Advocate with Mr. Rajendra Upreti, Advocate.
For the Respondent: Mr. Sudesh Joshi, Public Prosecutor and Mr. Yadev Sharma, Additional Public Prosecutor.
Point of Law: Cheating - Appellate Court may take further evidence or direct it to be taken - In dealing with any appeal, appellate court can refer to additional evidence only if same has been recorded as provided under S. 391 Cr.P.C.. Any material produced before appellate court to fill up gaps by either side cannot be considered by appellate court.
Headnote:
Code of Criminal Procedure, 1973 - Sections 391 r/w 482 - Indian Penal Code, 1860 - Section 468, 420, 471, 419, 201 - Prevention of Corruption Act, 1988 - Section 13(1) (d) (i) - Forgery for purpose of cheating - Mental condition - Appeal was filed in consultation with his wife as learned counsel who prepared memo of appeal was not satisfied with appellant’s behavior - When counsel for appellant was preparing case for final argument, his wife also informed counsel that day when exhibit-17 was allegedly prepared, appellant was mentally unfit, and she had taken him to a doctor.
Finding of the Court: Evidence of his mental condition is already on record - Explanation sought to be given by appellant to produce Annexure-A collectively at this stage after 5 years of framing of charges while appeal is ready for final - Argument is wanting and seems to be an attempt to raise a fresh plea not taken during trial - As held by Supreme Court in Rajvinder Singh (supra) it was certainly possible for appellant who was in good mental condition to understand nature of proceedings during trial to produce said documents during trial especially when appellant had also led defense witnesses.
Result: Application rejected.
ORDER :
Bhaskar Raj Pradhan, J.
1. The appellant has moved an application under section 391 read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for placing further documents as evidence on record. It is pleaded that the appellant had taken a stand that he is suffering from mental illness at the time of alleged commission and even during the trial. It is further averred that the appeal was filed in consultation with his wife as the learned counsel who prepared the memo of appeal was not satisfied with the appellant’s behavior. When the counsel for the appellant was preparing the case for final argument, his wife also informed the counsel that the day when exhibit-17 was allegedly prepared, the appellant was mentally unfit, and she had taken him to a doctor. The counsel for the appellant advised the appellant’s wife to find out the relevant document. On doing so, she discovered the medical certificate dated 23.05.2012 and discharge certificate dated 26.05.2012 annexed and marked as Annexure-A collectively to the application. It is stated that the documents are relevant and goes to the root of the case. Consequently, the application for leading additional evidence.
2. A reply has been filed by the State-respondent contesting the application and stating that the appellant has failed to establish how these documents are necessary.
3. Mr. B. Sharma learned Senior Advocate for the appellant submits that a perusal of the impugned judgment reflects that the learned Trial Court has heavily relied upon exhibit-17 against the appellant. He also took this court through the various records of the case. He, therefore, submits that these two documents are necessary, and the application may be allowed. Mr. Sudesh Joshi learned Public Prosecutor for the State-respondent submits otherwise. It is submitted that although the appellant’s wife was examined as a defense witness, during the trial she did not depose that on the day of execution of exhibit-17 the appellant was in fact admitted to the hospital. It is his submission that the scope of Section 391 Cr.P.C. is limited to permitting additional evidence when the court finds it necessary and not to fill the lacunae in the case. In support, the judgment of the Supreme Court in Rajvinder Singh vs. State of Haryana, (2016) 14 SCC 671 is referred to.
4. Section 391 Cr.P.C. reads as under :
“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 it were an inquiry.”
5. The Supreme Court in State (NCT of Delhi) vs. Pankaj Chaudhary, (2019) 11 SCC 575 held that the power conferred under Section 391 Cr.P.C. is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 Cr.P.C.. Any material produced before the appellate court to fill up the gaps by either side cannot be considered by the appellate court.
6. This court has considered the application and the relevant records highlighted by Mr. B. Sharma as well as Mr. Sudesh Joshi. The conviction of the appellant under Section 468, 420, 471, 419, 201 of the Indian Penal Code, 1860 (IPC) and Section 13(1) (d) (i) of the Prevention of Corruption Act, 1988 relates to offence co
