O R D E R

This petition has been filed challenging the order passed by the Court below dismissing the application filed under Section 391 of Cr.PC for adducing further evidence during the pendency of the appeal in Crl A No.321 of 2019.

2. Heard Mr. S.N.Thangaraj, learned counsel for the petitioner and Mr.Subramanian Vaidyanathan, learned counsel for respondent. 3. A complaint came to be filed against the petitioners by Mr/s.Deepti Integrated Logistics Private Limited for offence under Section 138 of the Negotiable Instruments Act. During the pendency of the complaint, the said Deepti Integrated Logistics Private Limited amalgamated with M/s.Emgee Infrastructure Holdings India Private Limited.

4. In view of the above development, an amendment petition was filed before the Trial Court to incorporate the name of M/s.Emgee Infrastructure Holdings India Limited as the complainant and this application filed in Crl MP No.198 of 2019 came to be allowed by order dated 26.04.2019. Accordingly, M/s.Emgee Infrastructure Holdings India Private Limited replaced the name of M/s.Deepti Integrated Logistics Private Limited as the complainant.

5. The proceedings before the Trial Court went on and ultimately, the petitioners were convicted and sentenced by the Trial Court by judgement dated 27.05.019. Aggrieved by the same, the petitioners filed an appeal before the Court below in Crl A No.321 of 2019.

6. During the pendency of the above appeal, the petitioners filed Crl MP No.4777 of 2021 under Section 391 of Cr.PC for recalling PW1 for further cross examination and also to adduce further evidence. This application was resisted by the respondent / complainant by filing a counter affidavit. The Court below after considering the contentions raised by either side, by order dated 01.03.2023 dismissed the application. Aggrieved by the same, the present Criminal original petition has been filed before this Court.

7. This Court has carefully considered the submissions and the materials available on record.

8. The main ground that was raised by the learned counsel for the petitioners is that the petitioners wanted to establish that M/s.Deepti Integrated Logistics Private Limited ceases to exist after the amalgamation and hence, the very maintainability of the complaint becomes questionable. It was further submitted that the counsel who was conducting the trial on behalf of the petitioners did not effectively put questions regarding the so called amalgamation. Hence, an application came to be filed under Section 391 of Cr.PC to adduce additional evidence and to establish the fact that the very complaint itself is unsustainable, since the complainant is not in existence in the eye of law.

9. The scope of Section 391 of Cr.PC is now well settled and such a power can be exercised by the Appellate Court only where it is necessary for ensuring that there is no derailment of justice. Hence, such a jurisdiction is exercised only in exceptional cases. The purpose of additional evidence under Section 391 of Cr.PC is not to fill up gaps but to oversee that the concept of justice does not suffer.

10. In the instant case, the Court below has considered the entire proceedings that took place before the Trial Court in detail. It was found that the order passed by the learned Magistrate allowing the amendment based on the amalgamation order was never put to challenge. Even while filing the appeal before the Court below, the petitioners never raised a ground that the original complainant ceases to exist after the amalgamation. Such a ground has been raised at the fag end after a new counsel has come into the scene during the pendency of the appeal. The Court below has assigned sufficient reasons after considering various judgements that were placed before the Court while dismissing the application and this Court does not find any illegality or infirmity warranting the interference of this Court under Section 482 of Cr.PC.

11. In the light of the above discussion, this Court doe