Rajasthan High Court - Jaipur
Jugal Kishore vs Roshan Lal on 9 February, 1999
Equivalent citations: 1999CRILJ2296, 1999(3)WLC317, 1999(1)WLN105
ORDER G.L. Gupta, J.
1. The revision petition is directed against the order d t. 22-10-97 passed in an appeal against conviction, whereby the Addl. Sessions Judge rejected the application of the petitioner under Section 391, Cr. P.C. on 25-1-99 the petitioner filed an application for treating the revision petition as misc. petition which was allowed.
2. The relevant facts of the case are these. Jugal Kishore had issued a cheque for Rupees 71,000/- on 7-4-91 drawn on Punjab National Bank, Udaipur in favour of the complainant-non-petitioner Roshan Lal for repaying the debt. Roshan Lal presented the cheque to the Bank but it was dishonoured. The cheque was again presented but again it was dishonoured. Jugal Kishore after giving notice to the' petitioner filed a complaint under Section 138 of the Indian Negotiable Instruments Act. After the trial was held, petitioner Jugal Kishore was convicted by the Magistrate vide judgment dt. 4-8-94. He preferred an appeal against the said judgment to the Court of Sessions which was transferred to the Additional Sessions Judge No. 3, Udaipur. There the petitioner made an application under Section 391, Cr. P.C. praying that the petitioner be allowed to file seven documents viz., copy of the civil suit filed by Roshan Lal (complainant), a copy of the written statement filed by the accused petitioner, copy of the civil suit filed by the complainant against Deepak Bharti, a copy of the written statement filed in that case, a copy of the statement of Roshan Lal in a civil suit referred to above, a copy of the agreement entered into between Roshan Lal and Deepak Bharti, a copy of the account prepared by Govind Ram, and a copy of the judgment in a case under Section 302, IPC in which Roshan Lal was convicted. In his reply, complainant Roshan Lal opposed the application. After hearing the learned Counsel for the parties, the Addl. Sessions Judge rejected the application of the petitioner-accused vide order dt. 22-10-97.
3. Mr. Shishodia contended that the documents referred to in the application of the petitioner are relevant to the just decision of the appeal preferred by him, and therefore, the Appellate Court ought to have allowed the documents.
4. Mr. Joshi, on the other hand, contended that Section 391, Cr. P.C. does not contemplate the production of documentary evidence, at the appellate stage. According to him, it is only the oral evidence that can be permitted to be produced by the Appellate Court under Section 391, Cr. P.C. His further contention was that the documents are not at all relevant for the decision of the appeal preferred by the accused-petitioner. He canvassed that the documents, which the petitioner wants to produce are not public documents and they cannot be read unless proved by the oral evidence and as the accused-petitioner failed to produce them during trial, the Appellate Court was perfectly justified in rejecting the application.
5. There is merit in the contention of Mr. Joshi that Section 391, Cr. P.C. does not contemplate the production of documentary evidence. A reading of sub-sections of Section 391, Cr. P.C. clearly shows that the word 'evidence' used in these sub-sections is the oral evidence. Section V is reproduced hereunder :-
391. Appellate Court may take further evidence or direct it to be taken.- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.
6. Under Sub-section (1) the Appellate Court is empowered to take evidence itself or direct it to be taken by the Magistrate or by the trial Court. The 'taking of the evidence' obviously means recording of oral evidence. So also under Sub-section (2) the evidence is to be certified by the Magistrate or the Court taking such evidence. This further shows that the provision is meant for taking oral evidence only. There is no question of certifying of the documentary evidence by the Court. Sub-section (3) also gives the same indication. So also Sub-section (4). In my opinion, the Appellate Court cannot permit the production of the new documents in exercise of its powers under Section 391, Cr. P.C.
7. Apart from that, under Sub-section (4) the evidence is to be taken as per the procedure provided in Chapter XXIII which is for recording the oral evidence. Of course, mere production of documents mentioned under Sections 292 and 293, Cr. P.C. may be used as evidence without calling the persons who prepared them. So also, under Section 294 for the documents if admitted by the other party, a formal proof is not required to be given. It is evident that the documents which the petitioner wants to produce do not fall in the category of documents mentioned in Sections 292 and 293, Cr. P.C. So also Section 294 does not apply as these are not the documents admitted by the complainant. Therefore, even if it is accepted for argument's sake that under Section 391, Cr. P.C. new documents mentioned under Sections 292, 293 and 294, Cr. P.C. can be permitted, the documents which the petitioner wants to produce do not fall in these categories.
8. Moreover, the documents are not at all relevant for deciding the controversy involved in the appeal. The question to be considered in the appeal is whether the petitioner issued the cheque in favour of the complainant and further whether the same was dishonoured by the Batik when produced for payment. Under Section 139 there is a presumption in favour of the holder of a cheque that he had received the cheque for the discharge in whole or any part of debt or other liability. The case set up by the petitioner in the trial Court was that he had already paid the outstanding amount to the complainant and only Rs. 2,000/- were due and the complainant did not return the cheque saying that he would return the same after the petitioner paid Rs. 2,000-. Thus, it was not disputed that the petitioner had issued the cheque in favour of the complainant and the same was dishonoured. The petitioner had come out with a case of payment of the whole of amount minus Rs. 2,000/-. As to how the documents referred to in the application are relevant for the defence raised by the petitioner is not clear.
9. It was pointed out by Mr. Shisodiya during arguments that the complainant had filed civil suit on 5-4-94 and the averments made therein indicate that there was novation of contract. The learned Magistrate decided the Criminal Case on 4-8-94 i.e. 4 months after the suit was filed. The petitioner had thus ample opportunity to produce a copy of the plaint in the trial Court. There is nothing on record to hold that the petitioner had not received the notice of the suit before 4-8-94. A copy of a plaint or written statement or even a copy of the statement of a witness is not a public document. The same cannot be used without proving the same by oral evidence. What the petitioner states in his application dt. 19-7-97 that the documents referred to in para No. 1 of the application would expose criminal character of Roshan Lal. In other words, the petitioner wants to impeach the credit of Roshan Lal by production of documents. The documents, as already stated, cannot be read in evidence without proving them. Obviously they cannot be used before the appellate Court to impeach the credit of Roshanlal. There is obviously no relevancy of the civil suit filed by the complainant against Deepak Bharti. The pleadings of that suit cannot be relevant in a case under Section 138 of the Negotiable Instruments Act between the petitioner and the complainant. The same is true for the account prepared by Govind Ram. One of the document referred to in the application is a copy of the judgment against the complainant in a murder case. It was admitted during arguments that the judgment was passed in 1991. The petitioner had thus ample opportunity to bring the document on record before the trial Court when the statement of the complainant was recorded. There is no justification of permitting the petitioner to produce the document at the appellate stage.
10. Section 391, Cr.P.C. gives a discretion to the appellate Court to allow further evidence in a case. The additional evidence can be permitted only when the appellate Court thinks that the evidence is necessary for the just decision of the case. In the instant case, the appellate Court has by a reasoned order held that the documents were not relevant and it did not think their production necessary. There is no cause to differ with the view taken by the appellate Court.
11. For the reasons stated above, I find no substance in the revision/misc. petition which is hereby dismissed.