Telangana High Court
M/S Bcc Infracon Private Limited vs The State Of Telangana on 2 December, 2021
Author: G Sri Devi
Bench: G Sri Devi
THE HONOURABLE JUSTICE G. SRIDEVI
CRIMINAL REVISION CASE No.358 of 2021
ORDER :
1. The present Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C. aggrieved by the order, dated 30.04.2021, passed in Crl.M.P.No.175 of 2021 in Crl.A.No.272 of 2018 on the file of the I-Additional Metropolitan Sessions Judge, Hyderabad, wherein and whereunder an application filed under Section 391 of Cr.P.C. seeking to permit the revision petitioners/appellants/accused to file certain copies of documents in the appeal, was dismissed.
2. The facts, in issue, are as under:
The revision petitioners, who are accused in Criminal Appeal No.272 of 2018 filed Crl.M.P.No.175 of 2021, under Section 391 Cr.P.C. seeking to permit them to file eight copies of documents as additional documents in the above appeal to prove their innocence and to establish that the 2nd respondent/complainant failed to make necessary parties before the trial Court and also to establish the direct transaction of the liability between the petitioners and the 2nd respondent. It is stated in the petition that the said documents were not produced before the trial Court as the said documents were under the bank seizure. It is further stated that the said documents are necessary and proper documents to adjudicate the case and to establish the direct transaction of the liability between the accused and the complainant. However, the said application was dismissed 2 by the appellate Court on 30.04.2021. Challenging the same, the present revision is filed.
3. Learned Counsel for the revision petitioners would submit that the Court below ought to have provided an opportunity to the petitioners by granting permission for submission of additional documents to prove their credibility. He further submits that the Court below taking into consideration the contents of the counter filed by the 2nd respondent, dismissed the petition, which is nothing but taking away the rights of the petitioners to prove their defence. He also submits that the Court below erred in dismissing the petition on the ground that the revision petitioner did not even refer the aspect of additional documents in the grounds of appeal.
4. Learned Assistant Public Prosecutor appearing for the 1st respondent opposed the revision.
5. Learned Counsel for the 2nd respondent/complainant would contend that though the petitioners are in possession of the said documents, they did not produce the same at the time of trial, as such, they cannot file the documents in the appeal and that there is no explanation from the petitioners as to why they could not file the said documents before the trial Court. He further submits that the petitioners did not refer the aspect of additional documents in the grounds of appeal and the present petition is filed only to fill up the 3 gaps and to drag on the litigation. Hence, there are no grounds to allow the revision and the same is liable to be dismissed.
6. Before proceeding further, it would be useful to refer to Section 391 Cr.P.C. which reads as under:
"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."
7. 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. But, at the same time, Section 391 Cr.P.C. would not be applicable when the complainant or the defence 4 having had ample opportunities to produce evidence before the trial Court but failed to do so.
8. In Rambhau and another v. State of Maharashtra1 the Apex Court held as under:-
"Incidentally, Section 391 of Cr.P.C. forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the powers 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 Cr.P.C. since the same avoid a de novo trial. It is not to fill up the lacuna but to sub- serve the ends of justice."
9. In the instant case, a perusal of the entire material placed before the Court would show that admittedly the petitioners did not file the said documents during the course of trial in the Calendar Case. The contention of the petitioners is that they could not file the said documents as the same were under the bank seizure. If the said documents were seized by the bank, nothing prevented the petitioners to put any questions to the witnesses with regard to the said documents during their cross-examination, but the petitioners failed to do so. In the appeal also, at the state of arguments only the petitioners filed the present petition. Further, the appellate Court 1 (2001) 1 ALD (Crl.) 800 (SC) 5 has dealt with all the points raised by the petitioners. Hence, this Court does not see any manifest error in the order passed by the lower appellate Court whereby application moved under Section 391 Cr.P.C. has been rejected.
10. Having considered the facts and circumstances of the case, this Court is of the view that the impugned order, dated 30.04.2021 passed in Crl.M.P.No.175 of 2021 in Crl.A.No.272 of 2018 on the file of the I-Additional Metropolitan Sessions Judge, Hyderabad, does not suffer from any infirmity or illegality requiring interference by this Court.
11. Accordingly, the Criminal Revision Case is dismissed. Miscellaneous petitions, if any, pending in this Criminal Revision Case shall stands closed.
_____________________ JUSTICE G. SRIDEVI 02.12.2021 gkv/Gsn