IMPORTANT POINT
The prosecution under Sec. 138 of the Negotiable Instruments Act can only be maintained by the drawer of the cheque who maintains the said account, and the scope and ambit of taking additional evidence under Sec. 391 Cr.P.C. is to appropriately decide the appeal by the Appellate Court to secure the ends of justice.

JUDGMENT

1. This Criminal Petition is filed aggrieved by the order of the learned XII Additional District and Sessions Judge, Vikarabad, Ranga Reddy District in Crl.M.P.No.137 of 2018 in Crl.A.No.61 of 2016, refusing to permit additional evidence under Sec. 391 of Cr.P.C.

2. The petitioner/accused was convicted for the offence under Sec. 138 of the Negotiable Instruments Act. Having appealed to the Sessions Court, he filed petition under Sec. 391 Cr.P.C requesting the Court to take on record the original bank account statement of account No.52126714257 and also the original passbook of the said account. Admittedly, the cheque in question was drawn on the said account.

3. To prove an offence under Sec. 138 of the Negotiable Instruments, the cheque has to be drawn by a person who maintains the said account. Sec. 138 of the Negotiable Instruments Act reads as follows:

[ 138 Dishonour of cheque for insufficiency, etc., of funds in the account.

--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this Sec. shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.-- For the purposes of this Sec. , "debt or other liability" means a legally enforceable debt or other liability.]

4. If the cheque is not that of the accused, the prosecution under Sec. 138 of the Negotiable Instruments Act cannot be maintained. The said evidence, which is sought to be brought on record would entail the court to come to a conclusion regarding the maintainability of the case filed against the petitioner.

5. Learned Sessions Judge found that the said defence that it is not his cheque was not taken in the lower court, for which reason, the present original document cannot be brought on record. Though the said defence was not taken in the trial Court, the prosecution under Sec. 138 of the Act can only be maintained by the drawer of the cheque, who maintained the said account.

6. In the said circumstances, it is just and necessary for the Court to ascertain whether the cheque belongs to the accused or not.

7. The Hon'ble Supreme Court in Criminal Appeal No.184 of 2020 in the case of Asim alias Asif Abdulkarim Solanki v. The State of Gujarat, dtd. 28/1/2020 observed as follows:

"Sec. 391 of the Cr.P.C does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Sec. 391 should be heard immediately after it is filed without waiting for the appeal to be finally heard."

8. The Hon'ble Supreme Court in th