The power under Section 391 of the Cr.P.C. allows introducing new evidence only to prevent injustice, not to change defense strategy.

JUDGMENT :-

. Rule. Rule made returnable forthwith by consent of the parties.

2. This petition is by the original accused whose application under Section 391 of the Code of Criminal Procedure (for short “Cr.P.C.”) came to be rejected by the learned Additional Sessions Judge, Ambajogai in an appeal.

3. The facts in short are that the respondent No. 2 filed a complaint against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”). The learned J.M.F.C. after trial held the petitioner guilty of an offence punishable under Section 138 of the N.I. Act by the judgment and order dated 04.01.2019. Being aggrieved by the said judgment and order, the petitioner preferred an appeal in the Court of learned Additional Sessions Judge, Ambajogai bearing Criminal Appeal No. 3/2019. The petitioner in the said appeal filed an application seeking permission to produce on record documents and to cross-examine the complainant.

4. The petitioner submitted in the application that though the petitioner has produced on record documents in the Trial Court that is account extract, however, inadvertently the same was not exhibited. It is submitted that, in view of the same it is necessary to conduct cross examination of the respondent No. 2/complainant. He submits that, from the account extract it is clear that, from time to time the petitioner has transferred the amount in favour of the respondent No. 2. The said application came to be objected by the respondent No. 2 stating that at this stage no new evidence can be allowed. Even if the documents are not exhibited, it will not cause any hardship as those documents are admitted.

5. The learned Additional Sessions Judge observed that inadvertently the documents are not exhibited. The documents however can be exhibited during appeal as the said documents are admitted by both the parties. The learned Additions Sessions Judge also relied upon the judgment in the case of Yogendra Bhatatram Sachdevev Vs. State of Maharashtra reported in 2003 (2) Cr.C.89 SC wherein, the Hon’ble Apex Court has held that the power under Section 391 be exercised to meet the ends of justice that is done to the accused on account of some irregularity while conducting trial. It is considered by the learned Additional Sessions Judge that in this case there was proper opportunity given to the petitioner to cross-examine the complainant before the learned Trial Court. Now asking to conduct further cross-examination would be filling up the lacuna in the case of defence of the accused. The learned Additional Sessions Judge thus rejected the application by order dated 09.12.2022.

6. Learned advocate for the petitioner vehemently argued that it is already recorded by the learned Court that the fact about the documents on record is admitted. The said documents are not exhibited that is also accepted by the learned Additional Sessions Judge. He invited attention to the order passed by the learned Trial Court on application below Exh. 40. The said application was moved by the complainant calling Branch Manager for cross-examination. Though the said application was allowed he did not examine the Branch Manager. In view of the same the Court ought to have exhibited the documents so that those can be read into evidence. He submits that, even if the cross-examination is allowed, no prejudice would be caused to the respondents. He submits that the learned Additional Sessions Court ought to have considered the interest of justice which tilts in favour of the petitioner.

7. Learned advocate for respondent No. 2 submits that, this application is filed when the appeal was posted for hearing. The learned Trial Court had rejected similar application. Now by way of further cross-examination the defence is trying to change its case. In the learned Trial Court, the defence taken was that the cheque was stolen by someone and the same is misused. In the appeal, now he wants to bring on record that