The appellate court's discretion to allow additional evidence under Section 391 CrPC must be exercised sparingly and only when necessary to prevent a failure of justice.

Judgment

Order Reserved on : 25/01/2024

Date of pronouncement: 05/02/2024

REPORTABLE

The present revision petitions under Section 397/401 Cr.P.C have been filed against the order dated 04.0.2023 passed by learned Additional Sessions Judge No.2, Sriganganagar whereby, the application preferred by the petitioners under Section 391 Cr.P.C. for taking on record new evidence found by the petitioner was dismissed.

Brief facts of the case are that the complainant respondent filed different complaints under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘the N.I. Act’) against the petitioner to the effect that he had lent amount by way of different transactions to the petitioner and for repayment, the petitioner handed over signed cheques to the complainant. It was alleged that when the complainant/respondent presented these cheques for payment, the same were dishonoured with the note of “Account closure”. Thereafter, a legal notice was sent by the complainant through his counsel and later on, a complaint case was filed against the petitioner in which the trial court took cognizance against the petitioner. During trial, statement of complainant PW/1 Hari Ram were recorded and various documents were exhibited. In defence, the statement of DW/1 petitioner Barikul Hasan and DW/2 Shrawan Kumar were recorded.

Upon conclusion of trial, the trial court after taking into consideration the entire facts and circumstances so also evidence on record, convicted and sentenced the petitioner for offence under Section 138 N.I. Act.

Feeling aggrieved, the petitioner preferred appeals before the court of Additional Sessions Judge No.2, Sriganganagar. During pendency of the appeals, the petitioner preferred application under Section 391 Cr.P.C stating therein that he recently found certain documents evidencing payment and computation receipts. The petitioner also filed an application for taking on record the handwriting expert establishing authenticity of the signatures of the complainant/respondent on payment receipts. The learned appellate court dismissed the applications of the petitioner by way of impugned order dated 04.07.2023.

Counsel for the petitioner submits that the appellate court has committed grave error of law in dismissing the application filed by the petitioners under Section 391 Cr.P.C inasmuch as these documents are vital for just decision of the case. It is argued that the court below has given a finding that the alleged receipts are executed on a plain paper in Hindi language whereas, the signatures of the pettioner are in Urdu language. In this regard, it is submitted that the petitioner has signed all the documents during trial in Urdu language only. So far as the newly found documents/evidence is concerned, the petitioner in his examination had stated that he had computation/payment slips which he is unable to trace. Thus, it is prayed that dismissal of the application under Section 391 Cr.P.C to bring on record essential piece of evidence, will result into grave injustice to the petitioner and therefore, the same is liable to be allowed.

Per contra, learned Public Prosecutor and learned counsel for the respondent supported the impugned order and argued that the petitioner was afforded ample opportunities during the entire trial but the petitioner failed to produce the said documents and now after a delay of sixteen years, the petitioner is seeking to produce the said documents only with an intention to delay the matter, more so, when the said documents are not at all relevant for the just decision of the case. Counsel further submits that the cheques in question relate to the loan amount received by the petitioner in the year 2000. Therefore, the appellate court has rightly dismissed the application filed under section 391 Crpc which does not call for any interference from this Court.

I have considered the rival contentions of the parties and carefully gone through the documents on record.

At the outset it is relevan