Delhi District Court
Ms. Urvashi Parashar vs State on 23 March, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Crl. (A) No. 15/2/2016
U.I.D. No. 54383/2016
P.S. Vikas Puri
Ms. Urvashi Parashar,
W/o Sh. Pradeep Parashar,
R/o C8/8283, Vasant Kunj,
New Delhi.
......... Appellant
Versus
1. State
2. Sh. Simran Pal Singh Suri,
S/o Late Sh. G S Suri,
R/o Flat no. 77, Pocket Block JG1,
Vikas puri, New Delhi.
....... Respondents
O R D E R 23.03.2017
1. By this order I shall decide an application under Section 391 Cr.P.C. filed by the appellant for adducing additional evidence.
2. In this application, it is stated that the complainant/respondent no. 2 had filed a complaint case under UID No.54383/2016 Urvashi Parashar Vs State & Another 1 of 9 Section 138 of the Negotiable Instrument Act. That the appellant was summoned and after framing of notice, trial was conducted. That the complainant has stated that at the time of taking the said financial help, the accused gave a cheque of Rs.25,00,000/ dated 15.05.2011. That the complainant nowhere in the complaint has stated about the date of loan or that he is having documents or proof of giving the loan. That the complainant has exhibited his income tax return for assessment year 201112 as Ex. CW1/10. That the complainant in his cross examination has stated that loan of Rs.25,00,000/ was given in cash. That the perusal of the income tax return filed by the complainant reveals that his income for the year 201011 was mere Rs.1,96,002/ and total capital of his proprietorship business was Rs.28,34,013/. That under these circumstances, it is highly improbable that the complainant could have given such a huge amount in cash to the accused/appellant.
3. It is stated that complainant had never proved the genuineness of the income tax return Ex. PW1/10 by summoning any UID No.54383/2016 Urvashi Parashar Vs State & Another 2 of 9 witness from the income tax department. That under these circumstances, the record of the income tax department is required to be produced to elicit the truth and books of account of the brother of the complainant are also required to be produced. It is prayed that the appellant/accused may kindly be allowed to summon the witnesses i.e. clerk from the income tax department and accountant of Sh. Sarabjeet Suri, brother of the complainant along with record.
4. The notice of the present application was issued to the respondents. The respondent no. 2 filed a detailed reply of the same and strongly opposed the application. All the submissions of the appellant are denied. It is stated that the present application is the part of dilatory tactic used by the appellant. That the appellant has repeatedly sought adjournment on one pretext or another. That the discretion under Section 391 Cr.P.C. cannot be exercised for filling the gap/lacunae at the request of either of the parties. All the other submissions are denied and it is prayed that application may kindly be dismissed.
UID No.54383/2016 Urvashi Parashar Vs State & Another 3 of 9
5. I have carefully perused the material on record and heard the Ld. Counsels for the parties at length.
6. Ld. Counsel for the appellant has relied upon four judgments i.e. (1) Sudevanand Vs State through CBI, I (2012) SLT 377 (2) Rafiq Vs Munshilal AIR 1981 Supreme Court 1400 (3) Chandrakant Jha Vs State 2015 (3) JCC 1636 and (4) Mohd. Salauddin Vs State & Another 2015 (2) JCC 1379 in support of his submissions. On the other hand Ld. Counsel for the respondent has relied upon two judgment i.e. (1) Pardeep @ Sonu Vs State (VNCT Delhi) 2011 (2) JCC 1031 & (2) Mamata Devi Vs Vijay Kumar Aggarwal 2008 Cri.L.J. 970 in rebuttal.
7. Section 391 Cr.P.C. lays down that "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".
8. The perusal of this Section reveals that the discretion vested with the Appellate Court to take further evidence is exception UID No.54383/2016 Urvashi Parashar Vs State & Another 4 of 9 to the general rule that an appeal must be decided on evidence which was before the Trial Court. Therefore, the discretion conferred must always be exercised with circumspection and for meeting the ends of justice. Additional evidence should be permitted only when it is the requirement of the Court to elucidate truth or when interest of justice demands such a course. This provision has been introduced in the Cr.P.C. to empower the court to meet the ends of justice 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 Cr.P.C. but they must be able to convince, the Court as to why the Court should exercise such power in their favour.
9. The Hon'ble High Court in a Judgment reported as Pardeep @ Sonu Vs State (Govt. of NCT of Delhi, 2011 (2) JCC 1031 has held as under: "The discretion vested in shape of exception, therefore, has to be exercised in the rarest of the rare cases and such exercise must avoid arbitrariness and must be according to UID No.54383/2016 Urvashi Parashar Vs State & Another 5 of 9 recognized cannons of criminal justice system. The additional evidence can be permitted at the instance of the prosecution as well as the defence. It is a known celebrated principle of law that discretion under this section should not be exercised for the purpose of filling a gap in the prosecution case when the necessary evidence was available to the prosecution at the hearing and ought to have been produced then. Likewise, defence should not also be permitted to tender such evidence when the evidence in defence was available to the defence at the hearing of trial and ought to have been produced then".
10. The Hon'ble Supreme Court in a judgment reported as AIR 1965 SC 1987 has held as under: "Broadly, the principle to allow fresh evidence in Appeal can be summarized as under:
i) The evidence sought to be called must be evidence which was not available at the trial;
ii) the evidence must be relevant to the issues;
iii) it must be credible evidence in the sense of being well capable of belief;
iv) the Court will after considering that the evidence to go on to consider whether there might have been reasonable doubt as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial". UID No.54383/2016 Urvashi Parashar Vs State & Another 6 of 9
11. In the light of guidelines laid down by the Hon'ble Supreme Court and Hon'ble High Court, now I advert to the facts of the present case.
12. The present complaint under Section 138 of the Negotiable Instrument Act was filed by the complainant on 19.07.2011. The notice under Section 251 Cr.P.C. was served upon the accused on 15.05.2012. The complainant was examined and cross examined on 01.12.2012, 16.02.2013, 10.05.2013 and 16.07.2013. Thereafter, the statement of accused was recorded under Section 313 Cr.P.C. whereby the accused sought opportunity to lead the evidence in her defence. The accused had taken 15 dates/opportunities for leading the defence evidence and thereafter, vide order dated 23.02.2015, DE was closed on the statement of accused. On 21.03.2015, the accused moved an application under Section 311 Cr.P.C. for recalling DW1 which has been withdrawn on 13.04.2015. The matter remained pending for final arguments on many dates of hearing. The accused was convicted vide judgment dated 21.12.2015. UID No.54383/2016 Urvashi Parashar Vs State & Another 7 of 9 The perusal of the record reveals that the accused had ample opportunity during the trial to lead the evidence as sought to be adduced by moving the application under Section 391 Cr.P.C. It is clear from the perusal of Trial Court Record that the accused by virtue of the present application wants to fill up the lacunae of his defence. The accused despite availability of the opportunity on each and every step of the trial has failed to adduce the relevant evidence.
13. It is not out of place to mention that the present application is moved by the appellant/accused at a belated stage, even in the appeal. The present application was not filed at the initial stage of the filing the appeal. It is clear that the present application is afterthought, moved by the appellant/accused to delay the trial or fill up the lacunae of her defence. The appellant has failed to satisfy that the evidence sought to be called, was not available during the trial. The appellant has failed to satisfy that the rarest of the rare circumstances exists to exercise this discretion by court.
14. Accordingly, in the present fact and circumstances of the UID No.54383/2016 Urvashi Parashar Vs State & Another 8 of 9 case, the application under Section 391 Cr.P.C. for adducing additional evidence moved on behalf of the appellant/accused is dismissed.
Announced in the open court today i.e. 23rd March, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No.54383/2016 Urvashi Parashar Vs State & Another 9 of 9