Allahabad High Court
Iqbal Ahmad vs State Of U.P. And Another on 6 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 299
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 76 Case :- APPLICATION U/S 482 No. - 3068 of 2020 Applicant :- Iqbal Ahmad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Gaurav Kakkar,Pravin Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Supplementary affidavit filed by the learned counsel for the applicant today in the Court, which is taken on record.
2. Heard Mr. Pravin Kumar Mishra, learned counsel for the applicant, Mr. P.K. Shahi, learned A.G.A. for the State and perused the record.
3. This application under Section 482 Cr.P.C. has been filed by the applicant seeking to quash the impugned order dated 12.12.2019 passed by the learned Additional District and Sessions Judge, Court No.05, Bijnor in Criminal Appeal No. 72 of 2018, whereby an application under Section 391 Cr.P.C. was rejected.
4. The brief facts of the case are that, a complaint has been filed by the complainant/opposite party no.2 against the applicant under Section 138 of the Negotiable Instruments Act with the allegations that the applicant purchased pots of brass worth Rs. 2,75,000/- on 24.04.2015 from opposite party no. 2 and for payment of which, he gave a cheque bearing No.993347 dated 24.04.2015 for Rs. 2,75,000/- drawn on Oriental Bank of Commerce, Branch, Bhaneda to the complainant. The cheque was presented before the concerned bank on 24.04.2015 but it was dishonored with the endorsement ''insufficient fund'. A notice was sent by the complainant to the applicant on 28.04.2015, which was received by him on 29.04.2015, but despite notice, the amount was not paid. Therefore, the complaint was filed against the applicant, on which, the applicant was summoned and put into for the trial. After trial, the learned Judge, Additional Court, Bijnor, vide judgment and order dated 31.10.2018 convicted the applicant under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for three months with fine of Rs. 3,50,000/- and in case of default of payment of fine further undergone simple imprisonment for a period of one month. It was further directed that out of total amount of fine/compensation of Rs. 3,50,000/-, Rs. 3,40,000/- has been directed in favour of complainant/opposite party no.2.
5. Feeling aggrieved by the judgment and order of the trial court dated 31.10.2018, the applicant filed a Criminal Appeal No. 72 of 2018, which is pending in the Court of Additional District and Sessions Judge, Court No. 05, Bijnor. During pendency of appeal, an application Kha-22 was moved by the applicant under Section 391 Cr.P.C. for getting the alleged signature of the applicant on the disputed chaque verified by hand writing expert on the ground that the cheque was alleged to have been issued by the applicant on 24.04.2015 whereas the cheque was not issued by the applicant nor it bears signature. During defence evidence, the applicant had moved applications B-25 and B-26 before the court below stating therein that the cheque of applicant was stolen for which an application was given to the bank concerned on 29.04.2015. Consequently, the application under Section 391 Cr.P.C. was rejected by the Additional District and Session Judge on the ground that earlier no such application was moved by the applicant before the trial court with respect to verification of the signature of the applicant on the disputed cheque, however, the applicant moved the applications B-25 and B-26 before the trial court regarding stolen cheque. During trial, applicant had enough time to verify his signature but the opportunity was not availed by the applicant and, therefore, no sufficient ground to invoke Section 391 Cr.P.C. arises. Consequently, application Kh-22 was rejected.
6. It has been contended by learned counsel for the applicant that learned Additional District and Session Judge, was not justified in rejecting the application under Section 391 Cr.P.C. specially when there was specific denial of the applicant that the cheque did not bear his signature and entire case was fabricated. The cheque was stolen and was misused, for which, an application was already moved by the applicant before the concerned bank. Therefore, the appellate court should have directed for sending the disputed cheque to hand writing expert for verification of signature on the cheque in question. It has further been contended by learned counsel for the applicant that appellate court committed error in not exercising jurisdiction under Section 391 Cr.P.C. in not permitting the applicant to verify his signature by hand writing expert, which has resulted in failure of justice.
7. Learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of "Brig. Sukhjeet Singh (Retd.) MVC vs. State of Uttar Pradesh and others" reported in 2019 (3) Supreme 242 wherein the Hon'ble Supreme Court has held as under:-
"11. In the present appeal, we are concerned only with the rejection of application filed by the appellant under Section 391 Cr.P.C. before the Session Judge in the criminal appeal filed by him against the conviction order, whether the Session Judge committed error in not exercising power under Section 391 Cr.P.C. to permit the appellant to lead additional evidence is a question to be answered. Whether the High Court committed error in not exercising power under Section 482 Cr.P.C. as to secure the ends of justice?
12. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with "Appeals". Section 391 Cr.P.C. empowers the Appellate Court to take further evidence or direct it to be taken. Section 391 is as follows:-
"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) 7 of 13 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."
13. The key words in Section 391(1) are "if it thinks additional evidence to be necessary". The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. The appeal has been filed by the accused, who have been convicted. The powers of Appellate Court are contained in Section 386. In an appeal from a conviction, an Appellate Court can exercise power under Section 386(b), which is to the following effect:-
(b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
14. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra Vs. State of West Bengal and Another, AIR 1965 SC 1887. Justice Hidayatullah, speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary 8 of 13 not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9:-
"8. ..................................... Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. 9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may 9 of 13 be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise...... ........................."
15. This Court again in Rambhau and Another Vs. State of Maharashtra, (2001) 4 SCC 759 had noted the power under Section 391 Cr.P.C. of the Appellate Court. Following was stated in Paragraph Nos. 1 and 2:-
"1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same........................ 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 Rajeswar 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 10 of 13 in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard."
16. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people...." In the aforesaid judgment, the Hon'ble Supreme Court while discussing two grounds rejecting the application under Section 391 Cr.P.C. by the Court of Sessions and High Court held that neither the filing of an application for additional evidence at a belated stage is a ground to reject the same nor the delay in decision of the appeal is a ground to dismiss the same if the proposed additional evidence enables the Court to secure the ends of justice in achieving the object of judicial administration."
8. Learned counsel for the applicant has also relied upon the judgment of the Hon'ble Supreme Court in the case of "Kalyani Baskar vs. M.S. Sampornam" reported in 2006 0 Supreme(SC) 1109.
9. Learned counsel for the applicant has, thus, contended that if the applicant is able to prove that his standards signature do not tally with the signature appended on the cheque in question, he can be acquitted and, therefore, the impugned order dated 12.12.2019, passed by the appellate court, dismissing the application of the applicnat filed under Section 391 Cr.P.C., be set aside.
10. Per contra, Mr. P.K. Shahi, learned A.G.A. for the State supported the impugned order and submitted that the cheque was issued by the applicant in connection with payment which was due from the applicant. During defence evidence, the applicant had ample opportunity to file an application for verifying his signature but he did not make any application before the trial court for comparison of his admitted signature with the disputed signature on the cheque in question and no such application was maintainable in the appellate court. It was also submitted that provisions of Section 391 Cr.P.C. will apply only in case of additional evidence, which came to light subsequently but the provision cannot be used to create additional evidence, which was not available to the trial court.
11. Before dealing with the arguments of learned counsel for the applicant, it would be useful to reproduce Section 391 of the Code of Criminal Procedure:-
"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."
12. According to Section 391 (1) Cr.P.C., the appellate court is entitled to take additional evidence, only if it thinks, additional evidence to be necessary. The key words in Section 391(1) Cr.P.C. are 'if it thinks additional evidence to be necessary'. The word 'necessary' used in Section 391(1) Cr.P.C. is to mean necessary for deciding the appeal. However, it depends on facts of each and every case to come to a conclusion as to whether it is 'necessary' to take additional evidence or not.
13. In the facts and circumstances of the present case, the applicant did not want to file any additional evidence but wanted to create new evidence merely on the ground that the disputed cheque does not bear his signatures.
14. The judgment relied upon by learned counsel for the applicant, in the case of Brig. Sukhjeet Singh (supra) wherein the Apex Court has held that mere delay in filing the application is not a ground to reject the same if the proposed additional evidence allows the lower appellate Court to achieve the object of judicial administration and to secure the ends of justice. This decision is of no help of the applicant as the Appellate Court has not rejected the application under Section 391 Cr.P.C. on the ground of delay in filing the said application, whereas, the Appellate Court has rejected the same on the ground that during course of trial, the applicant did not move any application for verification of his signature, it means that, the applicant did not want to file any additional evidence but wanted to create new evidence merely on the ground that the disputed cheque does not bear his signatures.
15. The judgment relied upon by learned counsel for the applicant, in the case of Kalyani Baskar (supra) wherein the Apex Court has held that where the accused denies his or her signature on the cheque and moved an application under Section 243 Cr.P.C. for sending the cheque in question for expert opinion, the same should have been allowed. This decision is also of no help of the applicant as during trial before the court below, the applicant did not make any application under Section 243 Cr.P.C. for verification of signature by hand writing expert, though sufficient opportunity was granted by the trial court to the applicant to lead defence evidence. Had such an application been moved before the trial court and the same having been rejected, it was open to the applicant to make a prayer under Section 391 Cr.P.C. before the Appellate Court but since no such prayer was made by the applicant before the trial court, there was no occasion for moving such an application before the Sessions Judge.
16. Perusal of the record shows that during trial, the applicant moved an application before the trial court with respect to loss of cheque for which an application was moved by the applicant before the concerned bank on 01.04.2015. However, the cheque in question was dishonored with the endorsement "insufficient fund" and not with the endorsement "mismatch of signature". Thus, it is clear that signature on the cheque is of the applicant. In spite of that, if the applicant find that the cheque in question was not issued by him, he should have moved an application before the trial court for verification of his signature by hand writing expert. For the first time, the applicant claimed before the appellate court that the cheque did not bear his signature and disputed cheque be got examined by hand writing expert. The applicant had ample opportunity during trial to get his admitted signatures compared with the disputed signature on the cheque but despite sufficient opportunity being given by the trial court, no such prayer was made by him. Thus the application for getting the signatures verified by handwriting expert was simply moved with a view to delay the disposal of appeal and the application under Section 391 Cr.P.C. does not appear to be bonafide.
17. Having considered the submissions advanced by learned counsel for the applicant, learned A.G.A. and also perusing the record, I have come to the conclusion that application under Section 391 Cr.P.C. filed by the applicant before the Appellate court was not bonafide and was simply moved to create confusion and delay in disposal of appeal and the application has been rightly rejected by learned Additional District and Sessions Judge, Bijnor. Hence the prayer made in the present application is refused.
18. The present application lacks merit and is, accordingly, rejected.
(Manju Rani Chauhan, J.) Order Date :- 6.02.2020 JK Yadav