Rajasthan High Court - Jodhpur
Barikul Hasan vs State Of Rajasthan on 5 February, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:4915]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1011/2023
Barikul Hasan S/o Naimul Hasan, Aged About 50 Years, R/o
Himmat Nagar, Sri Ganganagar, Present R/o Sadhu Colony
S.s.b. Road, Sri Ganganagar, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hariram S/o Chunnilal, R/o 71 Adarsh Nagar, Sri
Ganganagar, Rajasthan Through 1/1 Suresh Chandra
Grover S/o Late Shri Hariram Arora R/o 71 Adarsh
Nagar, Sriganganagar (Raj.)
----Respondents
Connected With
S.B. Criminal Revision Petition No. 1012/2023
Barikul Hasan S/o Naimul Hasan, Aged About 50 Years, R/o
Himmat Nagar, Sri Ganganagar, Present R/o Sadhu Colony
S.s.b. Road, Sri Ganganagar, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hariram S/o Chunnilal, R/o 71 Adarsh Nagar, Sri
Ganganagar, Rajasthan Through 1/1 Suresh Chandra
Grover S/o Late Shri Hariram Arora R/o 71 Adarsh
Nagar, Sriganganagar (Raj.)
----Respondents
S.B. Criminal Revision Petition No. 1019/2023
Barikul Hasan S/o Naimul Hasan, Aged About 50 Years,
Himmat Nagar, Sri Ganganagar, At Present R/o Sadhu Colony,
S.s.b. Road, Dist. Sri Ganganagar, Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hariram S/o Chunnilal, 71, Adarsh Nagar, Sri
Ganganagar, Raj. Through 1/1 Suresh Chadnra Grover
S/o Lt. Sh. Hariram Arora R/o 71 Adarsh Nagar,
Sriganganagar (Raj.).
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[2024:RJ-JD:4915] (2 of 9) [CRLR-1011/2023]
----Respondents
S.B. Criminal Revision Petition No. 1021/2023
Barikul Hasan S/o Naimul Hasan, Aged About 50 Years,
Himmat Nagar, Sri Ganganagar, At Present R/o Sadhu Colony,
S.s.b. Road, Dist. Sri Ganganagar, Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hariram S/o Chunnilal, 71, Adarsh Nagar, Sri
Ganganagar, Raj. Through 1/1 Suresh Chadnra Grover
S/o Lt. Sh. Hariram Arora R/o 71 Adarsh Nagar,
Sriganganagar (Raj.).
----Respondents
S.B. Criminal Revision Petition No. 1024/2023
Barikul Hasan S/o Naimul Hasan, Aged About 50 Years, R/o
Himmat Nagar Sri Ganganagar Present R/o Sadhu Colony
S.s.b. Road Sri Ganganagar Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hariram S/o Chunnilal, R/o 71 Adarsh Nagar Sri
Ganganagar Raj. Through 1/1 Suresh Chandra Grover
S/o Late Shri Hariram Arora R/o 71 Adarsh Nagar
Sriganganagar Raj.
----Respondents
S.B. Criminal Revision Petition No. 1025/2023
Barikul Hasan S/o Naimul Hasan, Aged About 50 Years, R/o
Himmat Nagar Sri Ganganagar Present R/o Sadhu Colony
S.s.b. Road Sri Ganganagar Raj.
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Hariram S/o Chunnilal, R/o 71 Adarsh Nagar
(Deceased) Sri Ganganagar Raj. Through 1/1 Suresh
Chandra Grover S/o Late Shri Hariram Arora R/o 71
Adarsh Nagar Sriganganagar Raj.
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[2024:RJ-JD:4915] (3 of 9) [CRLR-1011/2023]
----Respondents
For Petitioner(s) : Mr. Majhar Hussain through VC
Mr. Akshay Kumar Tak through VC
For Respondent(s) : Mr. S.S. Rajpurohit, PP
Mr. Himmat Jagga
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment Order Reserved on : 25/01/2024 Date of pronouncement: 05/02/2024 REPORTABLE The present revision petitions under Section 397/401 Cr.P.C have been filed against the order dated 04.0.2023 passed by learned Additional Sessions Judge No.2, Sriganganagar whereby, the application preferred by the petitioners under Section 391 Cr.P.C. for taking on record new evidence found by the petitioner was dismissed.
Brief facts of the case are that the complainant respondent filed different complaints under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'the N.I. Act') against the petitioner to the effect that he had lent amount by way of different transactions to the petitioner and for repayment, the petitioner handed over signed cheques to the complainant. It was alleged that when the complainant/respondent presented these cheques for payment, the same were dishonoured with the note of "Account closure". Thereafter, a legal notice was sent by the complainant through his counsel and later on, a complaint case was filed against the petitioner in which the trial court took cognizance against the (Downloaded on 06/02/2024 at 08:36:34 PM) [2024:RJ-JD:4915] (4 of 9) [CRLR-1011/2023] petitioner. During trial, statement of complainant PW/1 Hari Ram were recorded and various documents were exhibited. In defence, the statement of DW/1 petitioner Barikul Hasan and DW/2 Shrawan Kumar were recorded.
Upon conclusion of trial, the trial court after taking into consideration the entire facts and circumstances so also evidence on record, convicted and sentenced the petitioner for offence under Section 138 N.I. Act.
Feeling aggrieved, the petitioner preferred appeals before the court of Additional Sessions Judge No.2, Sriganganagar. During pendency of the appeals, the petitioner preferred application under Section 391 Cr.P.C stating therein that he recently found certain documents evidencing payment and computation receipts. The petitioner also filed an application for taking on record the handwriting expert establishing authenticity of the signatures of the complainant/respondent on payment receipts. The learned appellate court dismissed the applications of the petitioner by way of impugned order dated 04.07.2023.
Counsel for the petitioner submits that the appellate court has committed grave error of law in dismissing the application filed by the petitioners under Section 391 Cr.P.C inasmuch as these documents are vital for just decision of the case. It is argued that the court below has given a finding that the alleged receipts are executed on a plain paper in Hindi language whereas, the signatures of the pettioner are in Urdu language. In this regard, it is submitted that the petitioner has signed all the documents during trial in Urdu language only. So far as the (Downloaded on 06/02/2024 at 08:36:34 PM) [2024:RJ-JD:4915] (5 of 9) [CRLR-1011/2023] newly found documents/evidence is concerned, the petitioner in his examination had stated that he had computation/payment slips which he is unable to trace. Thus, it is prayed that dismissal of the application under Section 391 Cr.P.C to bring on record essential piece of evidence, will result into grave injustice to the petitioner and therefore, the same is liable to be allowed.
Per contra, learned Public Prosecutor and learned counsel for the respondent supported the impugned order and argued that the petitioner was afforded ample opportunities during the entire trial but the petitioner failed to produce the said documents and now after a delay of sixteen years, the petitioner is seeking to produce the said documents only with an intention to delay the matter, more so, when the said documents are not at all relevant for the just decision of the case. Counsel further submits that the cheques in question relate to the loan amount received by the petitioner in the year 2000. Therefore, the appellate court has rightly dismissed the application filed under section 391 Crpc which does not call for any interference from this Court.
I have considered the rival contentions of the parties and carefully gone through the documents on record.
At the outset it is relevant to discuss section 391 of Crpc which is quoted herein below :-
" 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 (Downloaded on 06/02/2024 at 08:36:34 PM) [2024:RJ-JD:4915] (6 of 9) [CRLR-1011/2023] 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."
The reading of Section 391 Crpc, so also proposition of law as laid down by the Hon'ble Supreme Court clearly leads to form an opinion that the legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the parties and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in allowing further evidence under Section 391. However, this power has to be exercised sparingly and in exceptional cases where the court is satisfied that directing additional evidence would serve the interest of justice. In the case in hand, it is the specific case of the complainant that he lent money to the petitioner in May 2000 for business of oranges and against this loan the accused handed him over cheques whereas, it is the case of petitioner that he took loan from the complainant in the year 1994 which he repaid in the year 1999 and the cheques were provided as security as is evident from the (Downloaded on 06/02/2024 at 08:36:34 PM) [2024:RJ-JD:4915] (7 of 9) [CRLR-1011/2023] receipt he is seeking to produce on record under section 391 Crpc. A perusal of the statement of the accused pettioner recorded under Section 313 Crpc goes on to show that he had handed over the cheques as security against the transactions in the year 1997-98, however, the statement recorded under section 315 Crpc he mentioned taking loan in the year 1994. Both these statements are self contradictory and do not inspire confidence. Since the petitioner's statement does not inspire confidence as to when he obtained the loan i.e. in the year 1994 or 1997-98, the alleged receipt with regard to repayment of loan in the year 1999, even if it is accepted to be genuine for the sake of arguments, becomes insignificant warranting exercise of powers under section 391 Crpc.
The Hon'ble Supreme Court in the case of Rajeswar Prosad Misra vs. State of West Bengal and Ors. (AIR 1965 SC 1887) has observed that-
"16. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose 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.(Downloaded on 06/02/2024 at 08:36:34 PM)
[2024:RJ-JD:4915] (8 of 9) [CRLR-1011/2023] 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."
The Apex Court has observed in the case of Rambhau and Ors. vs. State of Maharashtra (AIR 2001 SC 2120) "Incidentally, Section 391 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 since the same avoids a de novo trial. It is not to fill up to lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the C.P. Code."
Recently the Hon'ble Apex Court while considering the object of section 391 Crpc in the case of Ajitsinh Chehuji Rathod vs State of Gujarat and Anr. (SLP(Crl.) No(s). 16641 of 2023) dated 29.01.2024 has observed as under :-
"9. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request (Downloaded on 06/02/2024 at 08:36:34 PM) [2024:RJ-JD:4915] (9 of 9) [CRLR-1011/2023] was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that nonrecording of such evidence may lead to failure of justice."
Thus, in order to exercise power contemplated under section 391 of Crpc, the appellate court must be satisfied that taking of additional evidence is necessary. The court should not only consider whether the accused had reasonable opportunity of defending himself by adducing the proposed additional evidence, the court should also consider the question whether the additional evidence proposed to be adduced does have any relevancy.
Considering all the facts and circumstances of the case, this court is of the opinion that the petitioner had filed the application under section 391 Crpc as an afterthought and only with an intention to delay the disposal of appeal. Thus, the appellate court has not committed any illegality, perversity or jurisdictional error in rejecting the application under section 391 Crpc. The revision petitions being bereft of merit are hereby dismissed.
Stay petitions are also dismissed.
(MANOJ KUMAR GARG),J 84-BJSH/-
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