Himachal Pradesh High Court
Narender Singh vs Bhim Singh on 23 December, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 251 of 2019
Date of decision: 23.12.2019
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Narender Singh ...Petitioner.
Versus
Bhim Singh ...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.Rupinder Singh Thakur, Advocate.
Vivek Singh Thakur, Judge (Oral)
This petition has been preferred against the impugned order dated 11.6.2019 passed by learned Sessions Judge Sirmour at Nahan in Criminal Appeal No. 93-CR.A/10 of 2018, titled Narender Singh Vs. Bhim Singh, 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 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 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 28/12/2019 20:25:05 :::HCHP 2 cheque was not issued by him in favour of respondent 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 in question was procured by respondent fraudulently from his wife on the pretext that cheque is required be issued for a scheme formulated by respondent for purchase of goats. Therefore, in order to prove these facts, 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 and Brig. Sukhjeet Singh (Retd.) MVC Vs. The State of Uttar Pradesh and others 2019(2) Scale, 104.
5. Learned counsel for the respondent has supported the impugned order, for the reasons assigned therein and has prayed for dismissal of the petition and has also relied upon judgment dated 8.7.2019 passed by this Court in Cr. Revision No. 192 of 2018 titled Gurbachan Singh vs. H.P. State Cooperative Bank Ltd.
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6. Perusal of record reveals that respondent had filed a complaint under Section 138 of Negotiable Instruments Act against the petitioner for dishonor of cheque issued for Rs.1,00,000/- by the petitioner/accused.
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Statement of petitioner under Section 313 Cr.P.C. was recorded on 4.4.2018, wherein he had expressed his intention to lead evidence in defence. Accordingly, case was fixed on 10.5.2018 for examination of defence witnesses. However, not only the petitioner did not take steps for examination of defence witnesses for 10.5.2018, but also for dates fixed subsequent thereto i.e. on 5.8.2018, 28.8.2018, 1.9.2018 and 17.9.2018. Whereupon for non production of evidence despite grant of ample opportunity, the right to lead evidence in defence was struck off on 17.9.2018 and after hearing arguments, ultimately petitioner was convicted vide judgment dated 28.9.2018, and sentenced on 1.10.2018.
7. Against the impugned judgment dated 28.9.2018 passed by the trial Court, petitioner has preferred an appeal on 1.11.2018 and on 31.12.2018, an application under Section 391 Cr.P.C. for leading additional evidence was filed by petitioner, which has been dismissed by learned Sessions Judge by passing impugned order dated 11.6.2019.
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 ::: Downloaded on - 28/12/2019 20:25:05 :::HCHP 4 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 and others vs. State of Uttar Pradesh reported in (1978)1 SCC 466 the Apex Court has re-iterated that additional evidence sought 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 Rambhau vs. State of Maharashtra, reported in (2001)4 SCC 759 has held that Section 391 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 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 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.
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11. Referring Rambhau's case, the Apex Court in Zahira Habibulla H. Sheikh'vs. State of Gujarat reported in (2004)4 SCC 158, 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 ::: Downloaded on - 28/12/2019 20:25:05 :::HCHP 6 object of judicial administration is to secure ends of justice and the Courts exists for rendering justice to the people.
13. 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.
14. In present case, statement of petitioner under Section 313 Cr.P.C. was recorded on 4.4.2018 and on that day, petitioner/accused had ::: Downloaded on - 28/12/2019 20:25:05 :::HCHP 7 expressed his desire to lead evidence in defence and for the said purpose case was listed on 10.5.2018, but as noticed supra, petitioner/accused did not take any steps for leading evidence in defence on 10.5.2018 and also on .
subsequent dates i.e. on 5.7.2018, 28.8.2018, 1.9.2018 and 17.9.2018 and ultimately on 17.9.2018, 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. The conduct of the petitioner/accused establishes that he was very keen for lingering the conclusion of trial.
15. By filing application under Section 391 Cr.P.C. petitioner/accused has sought permission to lead additional evidence by examining the Clerk/Manager of the H.P. State Cooperative Bank of concerned Branch along with record of specimen signatures of the petitioner/accused and account opening form of petitioner/accused and also to examine his wife Smt. Reena Devi from whom cheque in question as blank cheque, has been alleged to have been obtained by the respondent. 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 by leading evidence on record, despite existence of the provision of severe onus under Section 139 of Negotiable Instruments Act.
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16. Petitioner/accused has disputed his signatures on cheque, issuance of cheque by him, but neither during trial nor in application filed under Section 391 Cr.P.C. he has prayed for sending the 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.
17 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 prevented by sufficient plausible cause, he ought to have called witnesses and 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 and disposed of in aforesaid terms.
(Vivek Singh Thakur), rd 23 December, 2019 Judge.
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