Himachal Pradesh High Court
Jagdeep Kumar vs Himachal Pradesh State Co-Operative ... on 8 July, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 191 of 2018 Reserved on: 25.6.2018 .
Date of decision: 8.7.2019
Jagdeep Kumar. ...Petitioner.
Versus
Himachal Pradesh State Co-Operative Bank Limited. ...Respondent. Coram The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes For the Petitioner: Mr.Sandeep Chauhan, Advocate.
For the Respondent: Mr.Sushant Vir Singh, Advocate.
Vivek Singh Thakur, Judge This petition has been preferred against the impugned order dated 26.5.2018 passed by learned Sessions Judge Sirmour at Nahan in Criminal Appeal No. 48-CRA/10 of 2017, titled Jagdeep Kumar Vs. Himachal Pradesh State Co-operative Bank, preferred by petitioner against his conviction under Section 138 of Negotiable Instruments Act, whereby an application, filed on behalf of petitioner/accused under Section 391 of the Code of Criminal Procedure (herein after referred to as the "Cr.P.C." in short), seeking permission to lead additional evidence in appeal, has been dismissed by the Appellate Court.
2. I have heard learned counsel for the parties and have also gone through the record of the Courts below.
3. Impugned order has been assailed mainly on the ground that the petitioner has taken a specific defence plea during trial that impugned cheque was not issued by him in favour of respondent-Bank, as the petitioner had already mortgaged his landed property in favour of bank against house loan availed by the petitioner/accused from the bank, Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 2 Cr. Revision No. 191 of 2018 regarding which entries have also been made in the revenue record and further that cheque in question does not bear his signatures and counsel for the petitioner, despite instructions of the petitioner, had failed to take steps .
to examine the official witness before the trial Court and further that examination of witnesses related to record is material to prove the innocence of the petitioner and is necessary for effective and proper adjudication of the case, as cheque in question was without consideration and could not have made basis for conviction. It is also contended by learned counsel for the petitioner/accused that cheque book, wherefrom the cheque in question has been alleged to have been issued, was never received by the petitioner/accused from the bank, as the petitioner/accused had never requested for issuance of cheque book in his favour and therefore, in order to prove this fact, additional evidence proposed to be lead in appeal, is necessary for doing the complete justice.
4. Learned counsel for the petitioner, in support of prayer for allowing the prayer of the petitioner/accused for permission to lead additional evidence, has put reliance on the judgments of Apex Court, reported in Rajeshwar Prasad Misra Vs. The State of West Bengal and another, AIR 1965 SC 1887, Abdul Latif and others Vs. State of Uttar Pradesh, (1978) 1 SCC 466, Brig. Sukhjeet Singh (Retd.) MVC Vs. The State of Uttar Pradesh and others 2019(2) Scale, 104 and Gaurav Kumar alias Monu Vs. State of Haryana (2019) 4 SCC 549.
5. Learned counsel for the respondent-Bank has supported the impugned order, for the reasons assigned therein and has prayed for dismissal of the petition.
6. Perusal of record reveals that respondent-Bank had filed a complaint under Section 138 of Negotiable Instruments Act against the petitioner for dishonor of cheque issued for `9,47,000/- by the petitioner/accused against his outstanding liability for repayment of house ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 3 Cr. Revision No. 191 of 2018 loan availed by him from respondent-Bank. Evidence of respondent-bank was completed on 4.3.2016, whereafter statement of petitioner under Section 313 Cr.P.C. was recorded on 23.3.2016, wherein he had expressed .
his intention to lead evidence in defence. Accordingly, case was fixed on 31.5.2016 for examination of defence witnesses. However, not only the petitioner did not take steps for examination of defence witnesses, but also did not attend the Court on 31.5.2016, whereupon non bailable warrants returnable for 21.6.2016 were issued for securing his presence and ultimately petitioner/accused appeared in the Court on 29.9.2016 with an application for cancellation of non bailable warrants, which was accepted and case was again listed for examination of defence witnesses on self responsibility on 21.10.2016. On failure to produce defence witnesses on 21.10.2016, last opportunity, for examination of defence witnesses on 21.11.2016, was granted. But on 21.11.2016 also no defence witness was present. However, one more opportunity by way of 'exceptional last opportunity' was granted to the petitioner/accused to produce his evidence on 19.12.2016. Thereafter for non production of evidence despite grant of ample opportunity, the right to lead evidence in defence was struck off on 19.12.2016 and after hearing arguments, ultimately petitioner was convicted vide judgment dated 28.1.2017, but on that date, he was not present and his personal appearance in the Court was exempted on his application, whereafter he was directed to be present for hearing on quantum of sentence on 25.2.2017, but he did not appear on 25.2.2017, 29.3.2017, 28.4.2017, 26.5.2017 and lastly on his appearance on 7.6.2017 sentence was announced.
7. Against the impugned judgment dated 7.6.2017 passed by the trial Court, petitioner has preferred an appeal on 5.7.2017 and when appeal, after receiving the record of trial Court, was listed for arguments on 3.11.2017, an application under Section 391 Cr.P.C. for leading additional ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 4 Cr. Revision No. 191 of 2018 evidence was filed by petitioner, which has been dismissed by learned Sessions Judge by passing impugned order dated 26.5.2018.
8. In Rajeshwar Prasad Misra's case supra the Apex Court has .
held that the Cr.P.C. gives power to the Appellate Court to take additional evidence, which, for the reasons to be recorded, it considers necessary and the Cr.P.C. gives wide discretion to the Appellate Court to deal appropriately with different cases, but for that again failure of justice is a condition precedent. The Apex Court has further clarified that additional evidence must be necessary, not because it would be impossible to pronounce judgment, but there would be failure of justice without it and thus power must be exercised sparingly and only in suitable cases and additional evidence must not ordinarily be permitted if the party has had a fair opportunity, but has not availed of it, unless the requirement of justice dictates otherwise.
9. In Abdul Latif's case supra, the Apex Court has re-iterated that additional evidence ought to be lead must serve useful purpose for arriving at just decision of the case.
10. Referring Rajeshwar Prasad Mishra's case (supra), the Apex Court in Rambha's case (surpa), has held that 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 power, being an exception, shall always have to be exercised with caution and circumspection, so as to meet the ends of justice and this power is not to fill up the lacuna, but to subserve the ends of justice. The Apex Court also held that a very wide discretion in the matter of obtaining additional evidence is available to the Court in terms of Section 391 of Cr.P.C, but additional evidence also cannot and ought not to be received in such a way so as to cause any prejudice to the accused and the order must not ordinarily be ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 5 Cr. Revision No. 191 of 2018 made if the prosecution has had a fair opportunity, but has not availed of it. The same principle is applicable in case of application filed by accused.
11. Referring Rambhau's case, the Apex Court in Zahira Habibulla .
H. Sheikh's case, has re-iterated that object of Section 391 Cr.P.C. is not to fill in the lacuna, but to subserve the ends of justice and Court considering the salutary principles shall also keep in view that the wide discretion conferred on the Court has to be exercised judiciously, as the legislature has put safety valve by requiring recording of reasons. It is further observed that Section 391 Cr.P.C. is in the nature of exception to Section 386 Cr.P.C. and the necessity for additional evidence arises when the Court feels that some evidence which ought to have been before it, is not before it or that some evidence has been left out or erroneously brought in and in all cases, it could not be laid down as a rule of universal application, that the court has to first find out whether the evidence already on record is sufficient and the nature and quality of the evidence on record is also relevant and this provision is a salutary provision which clothes the Court with power to decide an appeal effectively and being an exception to general rule, it must also be exercised with great care in consonance with the legislature intent for enacting Section 391 Cr.P.C. which empowers the Appellate Court to ensure that justice is done between the parties.
12. After considering its earlier pronouncements in Rajeshwar Prasad Mishra and Rambhau's cases, the Apex Court in Brig. Sukhjeet Singh (Retd) MVC's case, has again re-iterated that there are no fetters on the power under Section 391 Cr.P.C. of the Appellate Court and that all powers are conferred on the Court to secure ends of justice and ultimate object of judicial administration is to secure ends of justice and the Courts exists for rendering justice to the people.
13. Judgment in Gaurav Kumar's case in my considered opinion, is not applicable in present case, as in the given facts and circumstances of ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 6 Cr. Revision No. 191 of 2018 the case, it only permits the documents to be taken on record, which were sought to be submitted before the High Court. There is no discussion in this judgment with regard to the provisions of Section 391 Cr.P.C. or the purpose .
governing taking of additional evidence in a case at appellate stage invoking the provisions of Section 391 Cr.P.C.
14. From the provisions of Section 391 Cr.P.C. and ratio of law laid down by the Apex Court, it emerges that Section 391(1) Cr.P.C. empowers the Appellate Court, dealing with any appeal under Chapter XXIX of Cr.P.C. either to take evidence itself or direct it to be taken by the Courts subordinate to it, but after recording the reasons, if it thinks that additional evidence is necessary. Undoubtedly, the Courts are there for dispensation of justice and necessary reasons for taking additional evidence at appellate stage must be in the interest of justice and for a just and proper decision of the Appellate Court, as not only the primary, but sole purpose of judicial machinery, is to impart justice. Therefore, provisions of this Section should be invoked only for the ends of justice and not for any other reason. This Section is also not intended to remedy the negligence or laches of the party. It is also settled that though power is unfettered, but the recourse to exercise of these powers are not to be made ordinarily in a situation where either of the parties did not avail the opportunity to adduce evidence and accused should not be allowed to adduce the defence evidence at appellate stage, where he has failed to adduce the evidence despite granting of several opportunities. Appellate Court should not admit additional evidence where the party had opportunity to file the same before the trial Court, unless the requirement of justice dictates otherwise.
15. In present case, in his statement recorded under Section 313 Cr.P.C. on 23.3.2016, petitioner/accused had expressed his desire to lead evidence in defence and for the said purpose case was listed on 31.5.2016, but as noticed supra, petitioner/accused neither took any steps for leading ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 7 Cr. Revision No. 191 of 2018 evidence in defence nor attended the Court on the date fixed, which lead to issuance of non bailable warrants against him for his presence. After cancellation of non bailabe warrants on 29.9.2016, on listing the case for .
defence witnesses on 21.10.2016, 21.11.2016 and 19.12.2016, petitioner/accused did not lead any defence evidence and ultimately on 19.12.2016, his right to lead evidence in defence was stuck off by the order of the trial Court. Thus, it is evident from the record that despite grant of ample opportunities by the trial Court to the petitioner/accused to lead evidence in defence, he had failed to adduce the evidence.
16. It is also a fact that not only after recording of statement under Section 313 Cr.P.C., petitioner/accused remained absent and did not produce any evidence in defence, but also after conclusion of arguments, he did not appear on subsequent dates i.e. date fixed for announcing the order and on numerous subsequent dates thereafter, i.e. 25.2.2017, 21.3.2017, 28.4.2017 and 26.5.2017, fixed for determination of quantum of sentence. This conduct of the petitioner/accused establishes that he was very keen for lingering the conclusion of trial.
17. By filing application under Section 391 Cr.P.C.
petitioner/accused has sought permission to lead additional evidence by examining the Manager/Clerk of the respondent-Bank of concerned Branch along with record of certified copy of account opening form, specimen signatures of the petitioner/accused, saving bank account No. 652 and also certified copy of mortgage deed executed by petitioner/accused in favour of respondent-Bank. Evidence, sought to be produced now in appeal, was very much in existence during the trial and the petitioner/accused was well aware of the same, but except disputing the issuance of cheque/cheque book and his signatures on the cheque in question verbally, petitioner/accused had not made any endavour to substantiate his version ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 8 Cr. Revision No. 191 of 2018 by leading evidence on record, despite existence of the provision of reserve onus under Section 139 of Negotiable Instruments Act.
18. In present case debt liability of petitioner/accused towards .
respondent-Bank, is an admitted case, as it is no where disputed that petitioner did not owe the amount for repayment of house loan to the respondent-Bank and also it is not in dispute that on the date on which the cheque is stated to have been issued, the amount filled therein was not outstanding against petitioner/accused. Rather plea was taken that when the land of the petitioner was lying mortgaged with the respondent-Bank, neither there was any occasion to the petitioner/accused to issue cheque nor the bank had right to obtain such cheque from the petitioner/accused for recovering the outstanding loan amount, despite the fact that there was default in repayment on the part of petitioner/accused, but respondent-Bank would have resorted to recover its amount by other modes available with it including by selling the land of the petitioner/accused mortgaged with the Bank. Petitioner/accused has disputed his signatures on the cheque, but neither during the trial nor in the application filed under Section 391 Cr.P.C., he has prayed for sending his admitted signatures or handwriting, to Handwriting Expert to have its comparison with the signatures on the cheque, rather he is intending to call for the old record of the Bank, which may or may not be available in the bank after such a long time. It is also not in dispute that account, wherein sufficient funds were not available for honouring the cheque, belonged to petitioner/accused and genuineness and liability of the amount for which cheque was issued is also not in dispute. Loan was availed by the petitioner/accused from the respondent-Bank in the year 2007 and the last installment of repayment was made by the petitioner/accused on 22.6.2010. Thereafter in the Month of November, 2014 on approaching by the Bank Officials for re-payment, petitioner/accused had issued the cheque bearing No.281951 dated ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP 9 Cr. Revision No. 191 of 2018 3.11.2014 for repayment of outstanding loan liability. It is not a case where the debt or the liability of the petitioner/accused is in dispute. Debt or liability of the petitioner/accused is with regard to the loan availed by him from the .
State Co-operative Bank, therefore, the petitioner/accused is enjoying the benefits of public money, but without making its repayment and instead of making attempt to discharge his liability, he is asking the Bank for adopting a long cumbersome exercise to recover its debt by selling land mortgaged with the Bank. Where banker has two options to recover the amount the option to be exercised is to be decided by the banker. The loanee cannot dictate terms to the banker for adopting a particular path for recovery of loan amount.
19. In view of aforesaid discussion, I am of the considered opinion that allowing the application filed for additional evidence by the petitioner/accused would have defeated the interest of justice. When the petitioner/accused was having knowledge of documents during trial, then, unless prevent by sufficient plausible cause, he ought to have called these documents to produce in evidence before trial Court. Now at this stage, and also for discussion herein above, he is not entitled for leading additional evidence, particularly, when he made no efforts to adduce evidence during trial. Learned Sessions Judge has adopted the right course for the ends of justice and therefore, I find no irregularity, illegality and perversity in the impugned order, therefore, the same is affirmed. The petition is dismissed in aforesaid terms.
(Vivek Singh Thakur), th 8 July, 2019 Judge.
(Keshav) ::: Downloaded on - 29/09/2019 00:27:36 :::HCHP