The proposed additional evidence at the appellate stage must be necessary for the just decision of the case, and the court has the discretion to reject such evidence if it deems it unnecessary.

JUDGMENT :

Aggrieved by an order dated 05.08.2021, passed in the Criminal Appeal No. 11 of 2020, State Vs. Anwaar, by the court of Additional District and Sessions Judge, Tehri Garhwal (“the appeal”), the petitioner has filed instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”).

2. The respondent no.2 (the complainant) filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), in the court of Civil Judge (Senior Division)/ Judicial Magistrate, New Tehri, which was registered as Criminal Case No. 114 of 2013, Smt. Rukhsana Vs. State (for short, “the case”). The case was decided on 17.02.2020. The petitioner has been convicted and sentenced under Section 138 of the Act. The petitioner preferred an appeal. During the hearing of the appeal, the petitioner moved an application under Section 391 of the Code for examining three witnesses, namely, Imtiaz, Azim and Imran. This application has been rejected by the impugned order. The Court observed that no reason has been assigned by the petitioner as to why he did not examine these witnesses, during the trial of the case. Aggrieved by it, the petitioner is before this Court.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner would submit that the reasoning for rejection of the application under Section 391 of the Code is not in accordance with law. Learned counsel would submit that with regard to a cheque in question, the petitioner had already repaid Rs.1,30,000/- to the persons, as directed by the complainant. This factum could not be proved during the trial of the case. Therefore, the petitioner moved an application under Section 391 of the Code, which ought to have been allowed, but the court below rejected the application.

5. Learned counsel for the complainant would submit that the petitioner had ample opportunity to reveal the factum of payment of money during the trial of the case, but in his statement under Section 251 of the Code, he did not reveal anything. In his examination under Section 313 of the Code, the petitioner did not give specific dates as to when and to whom the money was paid. There has been immense opportunity to the petitioner to adduce evidence on this aspect. Therefore, it is argued that there is no reason to make any interference and the petition deserves to be dismissed.

6. The order impugned has been passed on an application filed under Section 391 of the Code. This section reads as hereunder:-

“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.”

7. A bare perusal of Section 391 of the Code reveals that additional evidence may be taken at the appellate stage, if the appellate court thinks that additional evidence to be necessary.

8. The impugned order reveals that the application under Section 391 of the Code, filed by the petitioner has been rejected mainly on the ground that the petitioner could not show as to why he did not examine the witnesses during trial.

9. The law mandates that if additional evidence is necessary that may be taken at the appellate stage. The question to be answered is as to whether the additional evidence, which the pe