Cherukurivenkateswara Prasad, vs Chellasubbaraidu,
2022 Latest Caselaw 7139 AP

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI

     HONOURABLE SRI JUSTICE NINALA JAYASURYA

           CRIMINAL PETITION No.3415 of 2022

Cherukuri Venkateswara Prasad              ....Petitioner

       Versus

1.Chella Subbaraidu
2.The State of Andhra Pradesh,
Rep.by its Public Prosecutor.            ...Respondents

Counsel for the petitioner : Mr.Y.Srinivasa Murthy, Senior Advocate.

Counsel for the 1st respondent : Mr.Balaji Medamalli

Counsel for the 2nd respondent : Assistant Public Prosecutor

ORDER:-

The present Criminal Petition is preferred against an

Order dated 25.04.2022 passed in Crl.M.P.No.36 of 2021 in

Criminal Appeal No.24 of 2021 on the file of the Court of III

Additional Sessions Judge, Rajampet, Kadapa District.

2. Heard Mr. Y.Srinivasa Murthy, learned Senior Counsel

appearing for the petitioner and Mr.Balaji Medamalli for

respondent No.1 and learned Assistant Public Prosecutor for

respondent No.2.

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3. The petitioner herein is the accused in C.C.No.31 of

2019 on the file of the Court of Judicial Magistrate of I Class,

Railway Koduru. Pursuant to the complaint lodged by the 1st

respondent herein, the petitioner was charged with the

offence under Section 138 r/w 142 of Negotiable Instruments

Act. The learned Magistrate vide Judgment dated

22.04.2021, convicted the petitioner after a full-fledged trial

and sentenced him inter alia to undergo imprisonment for a

period of one year while awarding compensation of

Rs.10,00,000/- to the complainant/1st respondent.

4. Aggrieved by the same, the petitioner/accused

preferred an appeal in Criminal Appeal No.24 of 2021 before

the learned III Additional Sessions Judge, Rajampet, Kadapa

District. In the said appeal, the petitioner moved a petition

i.e., Crl.M.P.No.36 of 2021 under Section 391 of Code of

Criminal Procedure (for short 'Cr.P.C.') to permit him to

produce documents i.e., a copy of bank statement as

additional evidence. The 1st respondent/complainant

opposed the said petition by filing a counter. The learned

appellate Court by its Order dated 25.04.2022 dismissed the

same. Seeking to quash the said Order, the present

Criminal Petition came to be filed.

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5. The learned Senior Counsel, inter alia submits that

three post dated cheques dated 13.08.2018 were alleged to

have been issued by the petitioner/accused towards

discharge of amount allegedly borrowed from the 1st

respondent/complainant and to disprove the case of the 1st

respondent/complainant, a copy of the bank statement for

the period from 01.04.2011 to 31.03.2012 was filed and the

same was sought to be received as additional evidence. He

submits that if the said statement is taken into account,

outcome of the case would be changed. While submitting

that the petitioner/accused could not file the said statement

before the learned Magistrate as the same could not be

secured at the relevant point of time, the learned counsel

would urge that non-filing of bank statement is neither willful

nor wanton and in exercise of the powers conferred under

Section 391 of Cr.P.C., the learned appellate Court ought to

have allowed the petition. Stating that 391 of Cr.P.C., is akin

to Order 41, Rule 27 of Cr.P.C., the learned counsel would

contend that in fact, a fair consideration of Section 391 of

Cr.P.C., would go to show that for the purpose of receiving

additional evidence in a Criminal case, the

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applicant/petitioner need not establish that despite exercise

of due diligence, he could not produce the additional

evidence before the Order against him was passed. The

learned Senior Counsel contends that in the present case,

the appellate Court failed to record the reasons as to why the

additional evidence sought to be marked was not necessary.

He would also further contend that the learned appellate

Court committed a grievous error in taking up the

Miscellaneous Petition and disposing it of independently

through the impugned Order. In other words, it is his

submission that the lower appellate Court is required to

dispose of the petition to receive additional evidence along

with the main appeal. The learned counsel would also

contend that the appellate Court failed to exercise jurisdiction

vested in it and its approach is contrary to the well settled

principles of law, that to meet the ends of justice the learned

appellate Court ought to have allowed the application in

question. He further submits that throwing out the evidence

at the threshold is contrary to law and the Order under

challenge is liable to be set aside on that ground. In support

of his contentions, the learned counsel placed reliance on

the judgment rendered by Hon'ble Supreme Court in

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Rambhau and Another v. State of Maharashtra1 and

Pramod Gupta v. State of Madhya Pradesh and Others 2

etc.,

6. The learned counsel for the 1st respondent/

complainant, on the other hand, supported the Order passed

by the learned appellate Court, inter alia contending that

there is no perversity or procedural irregularity in the Order

and that the same warrants no interference by this Court.

He submits that the learned appellate Court reserved the

matter for judgment on 20.04.2022, after hearing the parties

including the petition seeking permission to adduce

additional evidence. He submits that the learned appellate

Court felt it not necessary to receive the additional evidence

and therefore, dismissed the application to receive the

additional evidence by the impugned Order dated

25.04.2022 and posted the matter for judgment in the main

appeal and at that stage, the petitioner/accused filed another

application Crl.M.P.No.28 of 2022 to reopen the matter and

the same was allowed to enable the petitioner/accused to

advance further arguments, if any.

1 (2001) 4 SCC 759 2 2013 Law Suit (MP) 561

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7. While drawing the attention of this Court to the

relevant averments in the counter before the appellate Court,

the learned counsel would submit that the purpose for which

the document sought to be received as additional evidence

is not mentioned in the petition and intention of the

petitioner/accused is to improve his case. The learned

counsel would also submit that the petitioner did not enter

into the witness box and categorically stated in the Trial

Court that he has no evidence. The learned counsel further

submits that as the application in question was taken up

along with the appeal, it cannot be contended that it was

decided in isolation i.e., independently that of the appeal.

8. The learned counsel submits that the power to receive

additional evidence has to be exercised only in exceptional

cases and in the present case, the learned appellate Court

by assigning cogent reasons, dismissed the petition as it felt

not necessary to receive additional evidence. Placing

reliance on the decisions reported in Rajvinder Singh v.

State of Haryana3, K.A.Prakash Rao v. U.Indira Devi and

3 (2016) 14 SCC 671

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others4, Dasari Radha Krishna v. State of Andhra

Pradesh5 and G.Venkateshwar Rao v. V.Neelima and

Another6, the learned counsel seeks dismissal of the

Criminal Petition.

9. Refuting the said contentions, in reply, the learned

Senior Counsel submits that the very fact that the judgment

in the appeal is not ready, would make it clear that the

application in question was dealt with separately and the

decision in respect of the same independent of the appeal is

not sustainable. In any event, the learned Senior Counsel

submits that for rendering substantial justice, the appellate

Court ought to have allowed the application in question

instead of dismissing the same. Accordingly, the learned

counsel seeks to allow the Criminal Petition by setting aside

the impugned Order.

10. On a consideration of the rival contentions, the point

that falls for adjudication by this Court is:

Whether the Order of the appellate Court warrants interference by exercise of powers under Section 482 of Cr.P.C., in the facts and circumstances of the case?

4 2006(2) ALD (Crl.) 402(AP) 5 2010(1) ALD (Crl.)1001(AP) 6 2015(2) ALD (Crl.) 271

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11. Section 391 of Cr.P.C., which is relevant in the context

of the contentions advanced, may be extracted for ready

reference:

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.

12. A reading of the above provision of law would go to

show that the appellate Court, if it thinks that the additional

evidence is necessary for consideration of the matter at the

stage of appeal, by recording reasons may either take such

evidence itself or direct it to be taken by a Magistrate or if the

appellate Court is a High Court, by a Court of Sessions or a

Magistrate.

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13. In Rambhau's case, cited supra, an Order of acquittal

for the offences punishable under Sections 13(1)(d) r/w 13(2)

of the Prevention of Corruption Act was reversed by the High

Court and the matter was carried by way of appeal. The High

Court conducted additional examination of the accused

persons, as it felt that the same is necessary to rectify an

irregularity which was pointed out by the defence. The

Hon'ble Supreme Court while stating that on an analysis of

the Civil Procedure Code, Section 391 is akin to Order 41,

Rule 27 of C.P.C., further opined that the purpose of

introduction of Section 391(earlier Section 428) in the statute

book has been for the purpose of making it available to the

Court, not to fill up any gap in the prosecution case, but to

oversee that the concept of justice does not suffer. The

Hon'ble Supreme Court in the attending facts and

circumstances upheld the decision of the High Court.

14. In Zahira Habibulla H.Sheikh and Another7,

popularly known as Best Bakery case, the Hon'ble Supreme

Court had an occasion to deal with Section 391 of Cr.P.C.,

in an appeal filed against the judgment of Gujarat High Court

upholding the acquittal of the accused by the Trial Court.

7 (2004) 4 SCC 158

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The High Court also rejected the application filed by the

State for adducing additional evidence under Section 391 of

Cr.P.C., and/or for directing the retrial. Zahira who claims to

be an eye witness to the incident of killings, after completion

of trial and judgment by the Trial Court, made statements

and filed affidavits alleging that during trial she was forced to

depose falsely and turned hostile on account of threats and

coercion. She requested for a fresh trial. The Hon'ble

Supreme Court after detailed analysis of the matter, inter

alia, allowed the appeal filed by Zahira and ordered for a re-

trial. The Hon'ble Apex Court in the context of Section 391

of Cr.P.C., opined as follows:

"47............... Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.

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48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391.

49. ............. If the appellate court thinks that it is necessary in the interest of justice to take additional evidence, it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of discretion of the appellate court.......... "

15. In Ashok Tshering Bhutia v. State of Sikkim8, the

Hon'ble Supreme Court was dealing with an appeal against

an order of conviction as upheld by the High Court for the

offences punishable under Section 13(2) r/w Section 13(1)(e)

of the Prevention of Corruption Act, 1988. The High Court

initially, allowed the appeal and remitted the matter to the

Trial Court by an Order dated 27.09.2002, giving an

opportunity to the prosecution to prove the documents, with

a further direction to the Trial Court to send the file back to

the High Court after completing that formality. The Special

8 (2011) 4 SCC 402

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Judge after considering the matter, issued summons to 12

witnesses on the side of prosecution and as it failed to prove

the documents, on which reliance is placed, referred the

matter back to the High Court pursuant to which the

arguments were heard by the High Court and appeal was

dismissed. In the said case, the Hon'ble Supreme Court

dealing with the aspect of additional evidence, at Para 28

held as follows:

"Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity."

16. The Hon'ble Supreme Court at Para No.32 further held

that the additional evidence can be taken at the appellate

stage in exceptional circumstances, to remove an

irregularity, where the circumstances so warrant in public

interest, and that generally, such power is exercised to have

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formal proof of the documents etc., just to meet the ends of

justice. The Hon'ble Apex Court also held that the provisions

of Section 391 Cr.P.C., cannot be pressed into service in

order to fill up lacunae in the prosecution case. Accordingly,

the Hon'ble Apex Court allowed the appeal by setting aside

the Order passed by the High Court upholding the Order of

the Special Judge.

17. Rajeswara Prasad Mishra v. The State of West

Bengal9, is a case wherein, the Order of Conviction

reversing acquittal for the offence under Section 409 of the

IPC was under challenge. The High Court by taking into

consideration the additional evidence, set aside the order of

the Magistrate. The Hon'ble Supreme Court, at Para No.9

of the said Judgment, inter alia, observed 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. 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

9 AIR 1965 SC 1887

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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 requirement of justice dictate otherwise".

18. The Hon'ble Supreme Court, upheld the Order of the

High Court, in the facts and circumstances of the case.

19. In Anil Sharma and Others v. State of Jharkhand10,

the appellant before the Hon'ble Supreme Court was

sentenced to death for the offences punishable under

Sections 147, 148, 149, 326, 307 r/w 34, 452 r/w 34 and 302

r/w 34 of IPC. The High Court upheld the conviction,

however altered the sentence of death imposed on the

appellant to life imprisonment. Against the said order, the

matter was carried to Hon'ble Supreme Court and it would

appear that a ground was raised that the High Court went

wrong in dismissing the application for adducing evidence to

substantiate the appellants' claim of innocence. The Hon'ble

Apex Court while opining that whenever any such application

is filed before the Court, acceptability of the prayer in

question is to be objectively considered. However, upheld

10 (2004) 5 SCC 679

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the conclusions as arrived at by the High Court for rejecting

the application made by the appellants.

20. In Pramod Gupta's case, a learned Judge of High

Court of Madhya Pradesh (Gwalior Bench) was dealing with

a quash petition, wherein an application filed under Section

391 of Cr.P.C., in a Criminal Appeal was neither allowed nor

rejected, but deferred for deciding at the time of final hearing.

A contention was raised that Section 391 of Cr.P.C.,

provides that the application has to be decided before

hearing the final arguments of the appeal and therefore, it

was prayed that the impugned order be set aside with a

direction to decide the application before hearing the appeal

finally by the Appellate Court.

21. Referring to Section 391 of Cr.P.C., the learned Judge

opined that the whole scheme of Section 391 of Cr.P.C.,

suggests that like Civil cases, an application for taking

additional evidence on record under Section 391 of Cr.P.C.,

should also be considered and disposed of, after hearing the

criminal appeal on merits and such application should not be

disposed of in isolation without hearing the appeal on merits,

because if such applications are disposed of without hearing

the appeal on merits, then there may be cases of failure of

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justice. The learned Judge opining so, was not inclined to

interfere with the Order under challenge in exercise of its

power under Section 482 of Cr.P.C.

22. Insofar as the decisions relied on by the learned

counsel for the 1st respondent, in Rajvinder Singh's case,

the Hon'ble Supreme Court was dealing with an appeal filed

by the accused who was convicted and sentenced for the

offences under Sections 364, 302 and 201 IPC, which was

confirmed in appeal by the High Court of Punjab & Haryana.

During pendency of appeal before the High Court, the

appellant/accused filed an application under Section 391 of

Cr.P.C., praying that additional evidence be recorded and

the High Court directed that the said application be

considered along with the appeal itself. Subsequently, the

High Court dismissed the appeal and as regards application

under Section 391 of Cr.P.C., it was observed that it was

imperative for the appellant/accused to have examined the

expert in his defence at the Trial Court stage itself and the

report of the privately engaged forensic expert at such

belated stage could not be allowed to be taken on record.

The Hon'ble Supreme Court dismissed the appeal, inter alia

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holding that the High Court was right and justified in rejecting

the prayer to lead additional evidence at the appellate stage.

23. In G.Venkateshwar Rao's case, a learned Judge of

the erstwhile common High Court for the State of Telangana

and for the State of Andhra Pradesh at Hyderabad was

dealing with a matter wherein an application filed under

Section 391 of Cr.P.C., in an appeal filed by the appellant

against the Order of conviction for the offence under Section

138 of Negotiable Instrument Act. The complainant sought

permission to examine the Bank Manager and adduce

additional evidence. Opposing the said petition, a contention

was raised that the evidence which was sought to be let-in

was very much within the knowledge of the

petitioner/complainant, but during the trial, no steps were

taken to examine the Bank Manager at the relevant time and

hence the petitioner cannot let-in new evidence to fill up the

lacunae, which is impermissible in Law. The learned Judge

referring to the decision of the Hon'ble Supreme Court in

Rambhau's case cited supra, while opining that the

petitioner/complainant was conscious of the fact that the

evidence of the Branch Manager or some other employee of

the Bank is essential, did not examine the said witnesses at

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the right opportune time and the petition under Section 391

of Cr.P.C., is nothing but an effort to fill up the lacuna.

Making the said observations, the learned Judge dismissed

the quash petition.

24. In Dasari Radha Krishna's case, a petition under

Section 391 of Cr.P.C., seeking permission to lead additional

evidence by way of examining Branch Manager, Andhra

Bank was dismissed. To prove that the cheque in question

was drawn on account of partnership firm, the petitioner

wanted to examine the Branch Manager, Andhra Bank as

additional witness in the appeal. The learned Judge of the

High Court rejecting the plea that it is a pure question of law

which can be raised in the appeal, inter alia, opined that the

petitioner/accused wants to examine additional witness to

prove facts required for the said plea itself indicates that it is

not a pure question of law and it is undoubtedly mixed

question of fact and Law. The learned Judge, further held

that no party can be permitted to raise a mixed question of

fact and law for the first time in appeal. The learned Judge

further held that when such a plea cannot be raised by the

petitioner/appellant for the first time in the appeal, the

question of permitting the petitioner to lead additional

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evidence in the appeal by way of examining the witness and

marking certain documents in support of that plea, does not

arise at all. The learned Judge ultimately upheld the Order

passed by the Appellate Court and dismissed the quash

petition.

25. In K.A.Prakash Rao's case, the

appellant/complainant aggrieved by the Orders of the

learned III Additional Metropolitan Sessions Judge,

Hyderabad, in setting aside the order of conviction, carried

the matter by way of appeal. The appellant/complainant in

the appeal moved a miscellaneous petition under Section

391(1) of Cr.P.C., to receive the documents as additional

evidence, inter alia, on the premise that the same could not

be produced before the Trial Court as they were with a

mediator. The learned Judge while observing that the

appellant/complainant was examined as a witness before the

Trial Court as P.W.1, nowhere stated on oath that two

documents were in the custody of mediator and that for the

said reasons was not able to produce them before the Trial

Court held that he cannot be permitted to introduce the

documents at the appellate stage and dismissed the

application.

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26. The contentions advanced by the learned counsel for

both sides have been considered in the light of the above

said decisions, with reference to the facts of the present

case. There is no dispute with regard to the expressions of

the Hon'ble Supreme Court in the decisions relied on by the

learned counsel for the petitioner, the purport of which is that

the Appellate Court in exercise of its powers under Section

391 of Cr.P.C., can receive additional evidence in

exceptional cases and for rendering substantial justice.

Further, if the attempt is to fill up the lacunae in evidence, no

additional evidence can be received at the appellate stage.

As held by the Hon'ble Supreme Court in Anil Sharma's

case, the Court can consider the genuineness of the prayer

in the context as to whether the party concerned had a fair

opportunity to speak the truth earlier and in an appropriate

case accept it. In the present case, the petitioner/accused

sought to mark his bank account statement from 01.04.2011

to 31.03.2012, inter alia, on the premise that he could not file

the same due to inadvertence and on unseemly advice and

suffering with lack of knowledge relating to production of the

documents. Such a plea cannot be appreciated nor the

additional evidence can be received, more particularly, in

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view of the fact that the petitioner did not chose to examine

himself in support of his defence and as seen from the

counter-affidavit, he had reported no defence witnesses. In

this context, it may be appropriate to extract the relevant

portion of counter filed on behalf of the

respondent/complainant which reads thus:

"5. It is relevant to submit that the petitioner/appellant had full opportunity to raise his defence available during the trial. The petitioner did not give reply to the statutory notice prior to filing of the case. The appellant neither raised this defence during examination under Section 251 of Cr.P.C., nor when statement of the petitioner recorded under Section 313 of Cr.P.C. Moreover the petitioner categorically stated that he does not want to examine himself in support of his defence and reported no defence witness despite ample opportunity was given. As such, the petitioner has no bonafides to file present application for filing additional evidence."

27. From the record, it appears that no evidence was

adduced during the course of trial as the petitioner/accused

did not choose to adduce any evidence. The question of

adducing additional evidence, would arise only in the event

of the petitioner/accused adducing any evidence during trial.

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It is not his case that he could not adduce evidence for the

reasons beyond his control or he was threatened/forced not

to adduce any evidence. Under the said circumstances,

rejection of the application filed by the petitioner/accused,

though on a different ground by the learned Appellate Court

by exercising it's discretion, cannot be found fault with.

28. Insofar as the contention raised by the learned Senior

Counsel that the Appellate Court went wrong in dismissing

the application, without considering the same along with the

appeal on the same analogy of Order 41, Rule 27 of Code of

Civil Procedure(for short 'C.P.C.'), it is pertinent to mention

that as seen from the docket proceedings, it would appear

that the arguments in the matter were heard on different

dates and reserved for judgment on 20.04.2022. On

25.04.2022, the learned Appellate Court, dismissed the

Criminal Miscellaneous Petition No.36 of 2021 by a separate

order. However, not pronounced the judgment in the appeal

as the same was not ready. It is not the case of the

petitioner/accused that the miscellaneous application

seeking to receive the additional evidence was not heard

along with the appeal. The learned Appellate Court had

merely dismissed the miscellaneous petition by a separate

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Order and it would not amount to dealing with the same in

isolation as sought to be contended. The learned Appellate

Court having considered the application under Section 391

of Cr.P.C., and having come to a conclusion that there are

no merits in the application, dismissed the same and on a

plain reading of Section 391 of Cr.P.C., it cannot be

construed that such an application cannot be disposed of by

an independent Order, even if the contention that such an

application shall be dealt with along with the appeal on the

analogy of Order 41, Rule 27 of C.P.C., is accepted.

29. In view of the afore said conclusions, the contentions

advanced on behalf of the petitioner are rejected.

30. At this juncture, it may also be apposite to refer to the

opinion of the Hon'ble Supreme Court in Asim @ Munmun

@ Asif Abdulkarim Solanki v. State of Gujarat11, which

reads thus:

"Section 391 of the Cr.P.C., does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Section 391 should be heard immediately after it is filed without waiting for the appeal to be finally heard."

11 2020 Law Suit(SC) 914

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31. In the light of the above factual and legal position, this

Court is of the considered opinion that the Order under

challenge warrants no interference by this Court in exercise

of powers under Section 482 of Cr.P.C.

32. Accordingly, the Criminal Petition is dismissed.

Miscellaneous Petitions, if any, pending in this

Criminal Petition shall stand closed.

____________________ NINALA JAYASURYA, J Date: 19.09.2022 BLV

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HON'BLE SRI JUSTICE NINALA JAYASURYA

Criminal Petition No.3415 of 2022 Dated 19.09.2022

BLV