The power of an appellate court to take additional evidence under Section 391 Cr.P.C. is discretionary and cannot be exercised to fill lacunae in a party's case or to assist a party who failed to produce evidence despite having ample opportunity during the trial.

Whether only operative part of the judgment is Pronounced or the full judgment is pronounced: operative part/full judgment

MANDEEP PANNU, J

1. The petitioner–accused has filed the present revision petition against the impugned order dated 14.10.2022 passed by Learned Additional Sessions Judge, Rohtak in CRA No.242-2018 titled as “Sanjay son of Late Sh. Brij Mohan versus Sanjay son of Late Sh. Bansi Lal”, whereby Learned Appellate Court, vide the impugned order, dismissed the application filed by the petitioner-accused under Section 391 Cr.P.C. for leading additional evidence.

2. Briefly stated, the facts of the complaint are that the respondent-complainant filed a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 IPC against the petitioner–accused, alleging that the petitioner, being known to the complainant, had borrowed an amount of Rs.2,90,000/- for business purposes and issued a cheque bearing No.289527 dated 05.07.2013 drawn on Oriental Bank of Commerce, Gurugram, in discharge of his legal liability. However, upon presentation, the said cheque was dishonoured with the remarks “Funds Insufficient”, and despite service of legal notice, the petitioner failed to make the payment, thereby giving rise to the filing of the present complaint. After completion of preliminary proceedings, notice of accusation was served upon the petitioner–accused, to which he appeared, pleaded not guilty and claimed trial. The respondent–complainant was granted as many as 15 effective opportunities to lead evidence; however, he failed to conclude the same. Consequently, learned Trial Court, vide order dated 11.07.2018, closed the evidence of the respondent-complainant. Thereafter, the respondent–complainant moved an application under Section 311 Cr.P.C. for summoning witnesses, which was dismissed by learned Trial Court vide order dated 04.10.2018. Subsequently, the petitioner-accused led his evidence and also closed the same. Thereafter, learned Judicial Magistrate First Class, Rohtak, vide judgment and order dated 20.10.2018, allowed the complaint filed by the respondent-complainant and sentenced the petitioner–accused to pay fine. Feeling aggrieved by the afore-said judgment of conviction and order of sentence, the petitioner-accused preferred a criminal appeal before learned Sessions Judge, Rohtak.

3. During the pendency of the said appeal, in order to substantiate and strengthen his defence, the petitioner–accused moved an application dated 18.03.2021 under Section 391 Cr.P.C. for leading additional evidence. A reply to the said application was duly filed. However, learned Appellate Court, vide the impugned order, dismissed the application filed by the petitioner-accused under Section 391 Cr.P.C. for leading additional evidence.

4. In the application filed under Section 391 Cr.P.C., it was, inter-alia, pleaded by the applicant–appellant–accused that during the course of complainant’s evidence, the complainant had failed to examine the concerned bank official to prove the authenticity of the cheque in question. It was further contended that the cheque did not belong to the accused but to some other person, and learned Trial Court committed an error in not properly verifying the original ownership of the cheque. It was also stated that the certified copies of the relevant bank record/documents, which are material for just adjudication of the case, were not brought on record earlier and, therefore, the same are required to be produced by way of additional evidence.

5. Per contra, in the reply filed by the respondent-complainant, the application was strongly opposed on the ground that a similar application under Section 311 Cr.P.C. had already been moved by the complainant during trial, which stood dismissed by learned Trial Court. It was contended that the present application has been filed only to delay the proceedings and to fill up lacunae in the defence case. It was further submitted that the acc