Bombay High Court
Mamatadevi W/O Prafullakumar Bhansli vs Vijaykumar Mamraj Agrawal on 25 October, 2007
Equivalent citations: 2008CRILJ970, 2007(6)MHLJ809, AIR 2008 (NOC) 694 (BOM), 2008 CRI. L. J. 970, 2008 (2) ALL LJ NOC 480, 2008 (1) AIR BOM R 187, 2008 (2) AKAR (NOC) 336 (BOM), 2008 ALL MR(CRI) 442, 2008 (60) ALLCRIC 33 SOC, (2008) 1 CIVILCOURTC 190, (2007) 6 MAH LJ 809, (2008) 3 CURCRIR 129, (2008) 1 ICC 261, (2008) 1 BOMCR(CRI) 459, (2008) 1 NIJ 520, (2007) 3 BANKCLR 363, (2008) 62 ALLINDCAS 659 (BOM)
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
1. Rule. Heard finally with consent of parties.
2. These two applications under Section 482 of the Code of Criminal Procedure can be disposed of by common order, since the questions involved in both the applications are identical and parties are same.
3. The facts giving rise to these applications are as under - The applicant is an accused in Criminal cases instituted by the non-applicant/complainant under Section 138 of the Negotiable Instruments Act. It is alleged that the applicant/accused had issued two cheques in favour of the non-applicant/complainant. Both cheques came to be dishonoured. Since those cheques were dishonoured, a notice was issued by the non-applicant to the present applicant. The present applicant failed to pay the amount of cheque in spite of the service of notice. Hence, a criminal complaint case under Section 138 of the Negotiable Instruments Act came to be filed against her. The non-applicant examined himself on oath. The present applicant examined three witnesses on her behalf as defence witnesses. One of the witness Praful, who is the husband of the present applicant, filed on record one acknowledgment said to be executed by the non-applicant. He proved the said acknowledgment and the said document came to be exhibited at Exh.154. The learned Magistrate upon consideration of the evidence found the accused/applicant guilty and sentenced her to imprisonment of one year and fine of Rs. 3,00,000/-. The accused/applicant in the other case also was convicted. She, therefore, preferred two appeals against her conviction before the Court of Sessions. In those appeals, the applicant/accused filed an application for a direction for examination of the acknowledgment (Exh.154) by an handwriting expert. This application, it is alleged, is filed because the non-applicant had denied his signature on the said acknowledgment (Exh.154). The Sessions Judge rejected the application and being aggrieved by that order, these two applications under Section 482 of Criminal Procedure Code are preferred.
4. I have heard the learned Counsel for the applicant and the non-applicant.
5. The learned senior counsel Mrs. Sirpurkar for the applicant at the outset contended that the applicant/accused merely desires that the document (Exh.154) is examined by an expert and that will not cause any prejudice to the complainant/non-applicant at all. She submitted that the reality would come before the Court if the document is examined and that would help the Court to do real justice. The learned Counsel for the non-applicant, on the other hand, contended that even though the applicant/accused has had enough of opportunity to make such application before the trial Court, no such application was ever moved.
6. The first opportunity that was available to the applicant was when complainant was under the cross-examination. This document was in fact not produced before the Court even when the complainant was under the cross-examination. The accused could have very well shown the concerned document to the complainant during the cross-examination. Accused/applicant does not give any reason why such document was not shown to the complainant during the course of the cross-examination and why he could not be confronted with the same although the stake in this criminal case is very large. The applicant entered into defence after her statement under Section 313 of Criminal Procedure Code was recorded. Her witness DW 1 Praful, who is her husband stated on oath that non-applicant Vijay had issued an acknowledgment of two cheques and it was marked at Exh.154. It is after the evidence of defence was over that in rebuttal the non-applicant filed an affidavit stating that he had never issued such acknowledgment and it does not bear his signature and it is forged. This affidavit was filed by the complainant/non-applicant on 27-4-2005. The non-applicant was once again cross-examined by the accused and he once again denied his signature on Exh.154. This happened on 14-10-2005 and the judgment was delivered on 9-11-2005. Right from 27-4-2005 when the affidavit in rebuttal was filed and later complainant was cross-examined, present applicant has had every opportunity to apply to the magistrate to send the document for examination by an expert. The applicant did not at all apply to the magistrate. Not only the accused did not apply before the Magistrate but even before the Sessions Court she did not apply immediately. Although appeal against conviction was filed somewhere in November-December, 2005, the application before the Appellate Court was filed on 8-6-2007. There is no explanation why accused did not feel it necessary to apply before the magistrate and even before the Sessions Judge instantly. The only inference that can be drawn is that the accused was never serious about the examination of the document by an expert. It appears that only when the appeal came up for final hearing that this application came to be moved.
7. The decisions cited by Smt. Sirpurkar, learned senior counsel, , Mrs. Kalyani Baskar v. Mrs. M.S. Sampoomam and 2007(1) DCR 571, P.R. Ramakrishnan v. P. Govindarajan have no bearing on the case at hand. In both these decisions, the accused had denied the signature on the cheque and he sought to examine the expert as a defence witness. It was held that accused could file such application after entering upon the defence and the magistrate should have granted such request. Obviously, accused had sought to send the document to handwriting expert immediately on entering upon the defence. In the case at hand, even after the complainant/non-applicant stated on oath in rebuttal in affidavit that it does not bear his signature, the applicant chose to keep quiet.
8. The learned senior counsel for the applicant then urged that Section 391 of the Criminal Procedure Code permits evidence to be taken in appeal and for the right decision in the matter, the Appellate Court should have allowed the application. What Section 391 of Criminal Procedure Code says is that if the Appellate Court thinks such evidence to be necessary, it shall take it itself or cause itself to be taken by the Magistrate. The learned Counsel for the applicant contended that if such evidence is taken by the Court, the Court would be in a position to arrive at a right conclusion. She relied on the decision of the Supreme Court in , Rambhau and Anr. v. State of Maharashtra. The Supreme Court has observed thus -
2. A word of caution, however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in the case of Rajeshwar Prasad Misra v. State of W.B. In no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard.
4. Incidentally, Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the power being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the Civil Procedure Code.
6. Before going into the factual score further, it is convenient to note at this juncture that during the course of hearing of this appeal, the High Court thought it fit to conduct an additional examination of both the accused persons with a reasoning as below:
We have examined them to rectify the irregularity as cropped up and pointed out by the defence.
The word "irregularity" in common English parlance means and implies contrary to rule. This Court in the case of Marin Burn Ltd. v. Corporation of Calcutta while explaining the meaning of irregularity observed : (AIR P. 534, para 13) A point was, however, made that Section 131(2)(b) applies only to a cancellation on the ground of irregularity, that is, a procedural defect such as, absence of notice, omission to give a hearing, etc. There is, however, no reason to restrict the ordinary meaning of the word 'irregularity' and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in Corporation of Calcutta v. Chandoolal Bhai Chand Modi. That word clearly covers any case where a thing has not be done in the manner laid down by the statute, irrespective of what that manner might be.
Black's Law Dictionary defines the word as "not according to rule and not regular" i.e. which stands contrary to rule. As noticed above, the purpose of introduction of Section 391 (earlier Section 428) in the statute-book has been for the purpose of making it available to the Court, not to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer. The High Court itself records "to rectify the irregularity", the issue therefore, is whether this rectification by an additional evidence is a mere irregularity or goes to the root of the issue and instead of subserving the ends of justice, the same runs counter to the concept of justice.
9. The Supreme Court specifically observed that the purpose of introduction of Section 391 of Criminal Procedure Code in the statute book has been for the purpose of making it available to the Court and not to fill up any gap in the prosecution but to oversee that the concept of justice does not suffer. It is thus obvious that the parties as of right cannot seek use of Section 391 but it must be able to convince the Court as to why the Court should exercise such power in his favour. In the instant case, the accused has had enough opportunity firstly, to produce the document immediately and to confront the complainant and even to apply immediately to refer the document to an expert. The accused did not do anything until conclusion of the trial and even for almost two years after appeal was filed. The learned Magistrate has observed in para No. 29 of his judgment that the acknowledgment Exh.154 was not referred to in the reply to the notice by the accused. Similarly, the document came to be filed on record for the first time when defence witness Praful was examined. If such a document was really in existence, there was no difficulty in referring to it in notice and even producing it in Court immediately to confront the complainant during cross-examination. The accused in spite of denial by the complainant on oath in April, 2005, did not move any application. Hence, this is not a case where power could be used in favour of such a litigant. The Supreme Court has observed that the provisions of Section 391 of Criminal Procedure Code are akin to provisions contained in Order 41, Rule 27 of Civil Procedure Code. Rule 27 in fact starts with the words "no party shall be entitled to produce additional evidence. Ordinarily, therefore, there is a clear bar for admitting additional evidence in appeal. Rule, however, in certain cases allows such party to produce the evidence. The first ground is when the trial Court has refused to admit that evidence and second is in spite of exercise of due diligence, it was not within knowledge and could not be within the knowledge and could not be produced. The case at hand does not fall in either of the above two categories. The third ground is when the Court itself finds such evidence and document necessary to pronounce the judgment. In the instant case, I do not find that such examination of document is necessary for pronouncement of the judgment. This I say because it appears from the judgment of the lower Court that the accused did not even make a request to the Court to itself compare the signature of the complainant on the acknowledgment with his admitted signature. When such a request was not even made to the trial Court for comparison by the Court itself, it cannot be said that the accused ever intended that there is a need to have an examination of the document by any expert. Shri Chandurkar, learned Counsel for the non-applicant, contended that the application is made for two reasons, firstly; to fill up the lacunae and secondly; to delay. He submitted that the Appellate Court cannot permit additional evidence to be taken in appeal. He relied on a decision of this Court in 2003 All MR (Cri) 639, Yogendra Bhagatram Sachdev v. State of Maharashtra and Anr. This Court has observed thus -
22. All the decisions cited by the learned Advocate for the applicant are agreed that the exercise of power by the Judge under Section 391 of the Code of Criminal Procedure must be to meet the ends of justice so that injustice is not done to the accused on account of some irregularity in the conduct of trial or where the trial Court through ignorance has omitted to record the evidence of circumstances essential to elucidate the truth, with a caveat, that exercise of such power should not be with a view to fill up the lacunae in the evidence. Thus, the Court acting under Section 391 of the Code of Criminal Procedure, 1973 is required to exercise its discretion to allow the applicant-accused to lead evidence by examining himself at the appeal stage with circumspection and caution and only with the objective of doing justice between the parties in the facts and circumstances of the case. However, if the purpose of the prosecution or the accused to adduce evidence at the appeal stage is for the purpose of filling in lacunae, then such an application must be rejected.
Hence, I too find that the objective of accused is to fill up lacunae. In view of this, I find that the learned Sessions Judge rightly rejected the application. There is no substance in these two applications. They are dismissed.