Telangana High Court
Mohammed Qayyum vs P. Madanmohan on 4 November, 2022
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.7268 OF 2019
Between:
Mohammed Qayyum ... Petitioner
And
P.Madanmohan and another. ... Respondents
DATE OF JUDGMENT PRONOUNCED: 04.11.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 7268 of 2019
% Dated 04.11.2022
# Mohammed Qayyum. ... Petitioner
And
$ P.Madanmohan and another. ... Respondents
! Counsel for the Appellant: T. Anirudh Reddy
^ Counsel for the Respondent: Sri S.Sudershan, Addl. Public
Prosecutor for R2
>HEAD NOTE:
? Cases referred
1
Criminal Appeal No. 184 of 2020
2
(2019) 16 SCC 712
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.7268 OF 2019
ORDER:
1. This Criminal Petition is filed aggrieved by the order of the learned XII Additional District and Sessions Judge, Vikarabad, Ranga Reddy District in Crl.M.P.No.137 of 2018 in Crl.A.No.61 of 2016, refusing to permit additional evidence under Section 391 of Cr.P.C.
2. The petitioner/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act. Having appealed to the Sessions Court, he filed petition under Section 391 Cr.P.C requesting the Court to take on record the original bank account statement of account No.52126714257 and also the original passbook of the said account. Admittedly, the cheque in question was drawn on the said account.
3. To prove an offence under Section 138 of the Negotiable Instruments, the cheque has to be drawn by a person who maintains the said account. Section 138 of the Negotiable Instruments Act reads as follows:
4
[ 138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]
4. If the cheque is not that of the accused, the prosecution under Section 138 of the Negotiable Instruments Act cannot be maintained. The said evidence, which is sought to be brought on record would entail the court to come to a conclusion regarding the maintainability of the case filed against the petitioner.
5. Learned Sessions Judge found that the said defence that it is not his cheque was not taken in the lower court, for which reason, the present original document cannot be brought on record. Though the said defence was not taken in the trial Court, the prosecution 5 under Section 138 of the Act can only be maintained by the drawer of the cheque, who maintained the said account.
6. In the said circumstances, it is just and necessary for the Court to ascertain whether the cheque belongs to the accused or not.
7. The Hon'ble Supreme Court in Criminal Appeal No.184 of 2020 in the case of Asim alias Asif Abdulkarim Solanki v. The State of Gujarat, dated 28.01.2020 observed as follows:
"Section 391 of the Cr.P.C does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Section 391 should be heard immediately after it is filed without waiting for the appeal to be finally heard."
8. The Hon'ble Supreme Court in the case of Brigadier Sukhjeet Singh (Retired) MVC... v. State of Uttar Pradesh (2019) 16 Supreme Court Cases 712 held as follows:
"24.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 not because it would be 6 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 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..."
9. Since the documents which are relied upon by the appellant are required for appropriately deciding the appeal, petition is allowed. However the Sessions Court shall take the evidence on record only if it is brought on record by examining a witness having knowledge of the documents. It is to enable the complainant to have the opportunity to cross-examine the said witness. Option is left open to the learned Sessions Judge either to record the evidence in his Court or direct the concerned Magistrate to examine the witness who intends to bring the evidence on record. Merely accepting the 7 documents as prayed by the petitioner would cause prejudice to the complainant since he would not have the opportunity of cross- examination to determine the correctness or otherwise of the documents. Further if appears that the complainant was cheated, he can have recourse to prosecute the petitioner/accused for cheating.
10. Accordingly, the Criminal Petition is disposed off. As a sequel thereto, miscellaneous petitions, if, pending, shall stands closed.
__________________ K.SURENDER, J Date: 04.11.2022 kvs 8 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.7268 of 2019 Date: 04.11.2022.
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