Bombay High Court
Pournima W/O Kishor Pendke vs Ashok Manibhai Patel And Anr on 6 June, 2022
Bench: N. J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3299 OF 2018
Digitally
signed by Mrs. Pournima W/o. Kishor Pendke
SHRADDHA
SHRADDHA KAMLESH
KAMLESH TALEKAR
aged about 57 years, Occ.- Business,
TALEKAR Date:
2022.06.06 r/o. 34, Parag Apartment, Ring Road,
15:32:21
+0530 Kotwal Nagar, Nagpur ...Petitioner
Vs.
1. Ashok Manibhai Patel,
aged about 56 years, Occ. : Business,
having offce at La-Kozy Mansion No.1,
Ground foor, 21, Chowpatty Sea Face,
Mumbai - 400 007
2. State of Maharashtra ... Respondents
****
Ms.Shilpa Pawar i/b Ms.Neha Bhide for petitioner.
Ms.Dimple Shah a/w. Mr.Siddhant Varil, Mr. Varun Shah and
Mr.Rahul Sabnis for respondent No.1.
Ms. Anamika Malhotra, APP for respondent No.2-State.
*****
CORAM : N. J. JAMADAR, J.
Reserved for order on : 27th APRIL, 2022
Pronounced on : 6th JUNE 2022.
JUDGMENT :
1. Rule. Rule made returnable forthwith and with the consent
of the learned counsels for the parties, heard fnally at the
admission stage.
2. The petitioner, who is convicted for an offence punishable
under section 138 of the Negotiable Instruments Act, 1881 (The
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N.I. Act, 1881') takes exception to an order passed by learned
Additional Sessions Judge, Greater Bombay on an application
(Exhibit 6) in Criminal Appeal No. 553 of 2016 dated 27 th June
2018, whereby the prayer of the petitioner/appellant to lead
additional evidence under section 391 of the Code of Criminal
Procedure, 1973 ('the Code') came to be rejected.
3. The background facts leading to this petition can be stated
in brief as under :
3.1 The respondent No.1-complainant lodged a complaint,
being CC No.1335/SS/2015 (151/SS/2009) for the offence
punishable under section 138 of the N.I. Act, 1881 with the
allegation that the complainant had paid a sum of
Rs.50,00,000/- believing the representation of the accused
that the latter would execute an agreement for sale of the
land situated at Nagpur. The accused could not execute an
agreement for sale, as promised. Upon persuasion, the
accused delivered two cheques; one of them being cheque
No.0754270 drawn for a sum of Rs.35,00,000/- payable on
7th December 2008. Upon presentment, the said cheque
('subject cheque') was returned unencashed on account of
insuffciency of funds. Despite the service of the demand
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notice, the accused failed to pay the amount covered by the
cheque and, thus, committed the offence punishable under
section 138 of the N.I. Act, 1881.
3.2 The defence of the accused was two-fold. One, there
was no transaction between the complainant and the
accused and the subject cheque was delivered by way of
security only. Two, the complainant was guilty of
interpolating the date on the cheque and thereby the
instrument was rendered void. It was alleged that the
complainant had changed the date from '7-2-2008' to '7-12-
2008' by inserting the fgure '1' before the fgure '2'. The
accused had examined two hand-writing experts. A private
hand writing expert, namely Mr. Kaushik, gave an opinion
that the fgure "1" in the month column of the date on which
the cheque appeared to be payable was inserted before the
fgure "2" to make it payable on '7-12-2008' instead of '7-2-
2008'. The learned Magistrate was, however, not persuaded
to give primacy to the evidence of Mr.Kaushik to that of the
Government hand-writing expert, who had expressed
inability to give a defnite opinion. Eventually, the accused
came to be convicted for the offence punishable under
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section 138 of the N.I. Act, 1881 and sentenced to suffer
rigorous imprisonment for one month and pay fne of
Rs.67,10,000/-, by judgment and order dated 25 th June
2016.
3.3 The petitioner-accused preferred appeal, being
Criminal Appeal No.553 of 2016. In the appeal, the
petitioner preferred an application (Exhibit 6) seeking
permission to lead additional evidence in the nature of
tendering a photostat copy of the cheque, which bears the
date '7-2-2008' and to lead the same in evidence as and by
way of secondary evidence. In the application, the petitioner
asserted that, after the decision by the learned Magistrate in
the month of June 2017, while dealing with case documents,
the petitioner found a photostat copy of the subject cheque.
Since the photostat copy of the subject cheque clearly
indicates that the subject cheque was payable on 7-02-
2008, it is necessary to permit the petitioner to place the
photostat copy of the subject cheque on the record of the
court for a just decision of the case.
3.4 The respondent No.1-complainant resisted the
application by contending that the entire exercise was
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malafde. Controverting the claim of the petitioner that the
petitioner could lay hand on the photostat copy of the
subject cheque, the respondent No.1 asserted that the
petitioner had procured a tampered photostat copy of the
cheque by manipulation. An endeavour was made by the
respondent to demonstrate as to how easily a photostat copy
of a document can be procured by using devices like
whitener and/or hiding a part of the document. The
respondent denied that the additional evidence sought to be
tendered by the petitioner is necessary for a fair decision of
the appeal.
3.5 The learned Additional Sessions Judge was persuaded
to reject the application holding inter-alia that the defence of
the petitioner that there was unauthorised interpolation in
the date of the subject cheque was already raised by the
petitioner-accused and even evidence of handwriting expert
was led to buttress the said defence. In that backdrop, in
the opinion of the learned Additional Sessions Judge, the
said exercise was not warranted as there was already
evidence on record in the form of the opinion of the
handwriting expert.
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3.6 Being aggrieved, the petitioner has invoked the writ
jurisdiction.
4. I have heard Ms.Shilpa Pawar, the learned counsel for the
petitioner and Ms.Dimple Shah, the learned counsel for the
respondent No.1, at some length. With the assistance of the
learned counsels for the parties, I have also perused the material
on record including the application seeking permission to lead
additional evidence and a photostat copy of the cheque annexed
thereto.
5. In order to properly appreciate the controversy raised in the
instant petition, it may be apposite to extract, at this stage itself,
the relevant averments in paragraph Nos. 4 and 5 of the
application :
4] It is most respectfully submitted, that
while dealing with the case documents, in the
month of June 2017, she found a photostat of the
cheque bearing No.0754270, dated 07-02-2008,
with her, which clearly shows that, the said
cheque has been tampered with the date/s of the
cheque in question, by the
complainant/respondent. Therefore, the same
could not be fled before the Trial Court.
5] It is further most respectfully submitted
that, in the interest of justice, the photocopy of the
cheque in question may kindly be taken on record
as additional evidence and also consider the same
as secondary evidence, so as to meet the ends of
justice. The appellant hastens to submit that the
contention that cheque bearing No.0754270 never
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issued on 07-02-2008 and that the complainant
has tampered with the date and that there exists
no legally enforceable liability on 07-12-2008, can
be fortifed from the opinion of the expert. The
appellant submits that, in order to conclude the
fair and conclusive decision of the appeal the
instant application may kindly be allowed, in the
interest of justice. Indeed, no effective and
complete adjudication of the controversy is
possible in absence of the secondary evidence, as
prayed for.
6. From the perusal of the aforesaid averments, it becomes
abundantly clear that the sole reason ascribed by the petitioner to
lead additional evidence by invoking the provisions contained in
section 391 of the Code is the discovery of the photostat copy of
the cheque in the month of June 2017. Thus, according to the
petitioner, it could not be tendered before the trial court. Indeed,
there are averments in the application to the effect that the
additional evidence sought to be led by the petitioner is necessary
for a fair and just decision of the case.
7. In the aforesaid backdrop, the learned counsel for the
petitioner strenuously submitted that the learned Additional
Sessions Judge approached the controversy from an incorrect
perspective. The fact that the petitioner had already raised the
defence of interpolation in the contents of the cheque and led
evidence in support thereof by examining the handwriting experts
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could not have been justifably arrayed against the petitioner. The
very premise of the application of the petitioner that the
additional evidence sought to be led by the petitioner would lend
credence to the defence, was completely lost sight of by the
learned Additional Sessions Judge. Instead, the learned
Additional Sessions Judge proceeded on the premise that since
the expert evidence was already on record, it was not necessary to
permit the appellant to lead additional evidence. This approach of
the learned Additional Sessions Judge, according to learned
counsel for the petitioner, runs counter to the very object of
incorporating of an enabling provision under section 391 of the
Code.
8. To bolster up this submission, the learned counsel for the
petitioner placed a strong reliance on a judgment of the Supreme
Court in the case of Brig. Sukhjeet Singh (Retd.) MVC Vs. The
State of Uttar Pradesh & Ors. 1, wherein, after adverting to the
provisions contained in section 391 of the Code and the previous
pronouncements, the Supreme Court observed that from the law
laid down by the Supreme Court, it is clear that there are no
fetters on the power under section 391 of the Code of the
1 (2019) 16 SCC 712
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Appellate Court. All powers are conferred on the Court to secure
ends of justice. The ultimate object of judicial administration is to
secure ends of justice. Court exists for rendering justice to the
people.
9. Per contra, the learned counsel for the respondent No.1
stoutly submitted that the application for leading additional
evidence under section 391 of the Code constituted a link in the
chain of dilatory tactics adopted by the accused to defeat the
legitimate claim of the complainant. The learned counsel urged
with a degree of vehemence that the very premise of the
application that, the photostat copy of the subject cheque was
found in the year 2017, though the cheque was drawn in the year
2008, does not appeal to human credulity. There is no explanation
much less reasonable one for not asserting the fact that a
photostat copy of the cheque with the date 7-2-2008 was in
existence at any point of time till the application came to be
preferred.
10. Placing reliance on a judgment of the Supreme Court in the
case of Ashok Tehersing Bhutia Vs. State of Sikkim 2, wherein a
note of caution was administered that exercise of the power of
2 (2011) 4 SCC 402
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permitting the additional evidence at the appellate stage must be
sparing and only in exceptionally suitable cases where the court
is satisfed that additional evidence would serve the interests of
justice, the learned counsel for the respondent No.1 submitted
that the case at hand does not warrant exercise of such power.
11. Section 391 of the Code 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."
12. In the case of Ranjan Dutta Vs. State of Maharashtra & Anr.
, I had an occasion to consider the nature and import of the
provisions contained in section 391 of the Code, in the context of
3 2020(1) Bom.C.R. (Cri.) 707
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the afore-extracted text and the governing precedents. The
observations in paragraph Nos.11 to 15 are material and hence
extracted below :
11 The text of sub-section (1), on a plain reading,
indicates that a wide discretion is conferred in the
appellate court to either take or direct to be taken the
additional evidence. However, the discretion is
controlled by two imperatives. One, the Court must
come to a conclusion that the additional evidence is
necessary. Two, the appellate court, if it admits the
additional evidence, shall record reasons for the same.
The expression, "if it thinks additional evidence to be
necessary" indicates that it is not the right of a party
to lead the evidence, but the evidence ought to be
such which the appellate court deems necessary to be
led for a just decision of the case. The emphasis
appears to be more on the requirement of the court to
promote justice rather than the desire of a party to
lead evidence in support or negation of the charge.
Undoubtedly, the phraseology of sub-section (1) of
section 391 does not indicate the circumstances in
which the discretion is to be exercised. However,
having regard to the fact that the Code contains
elaborate provisions for a fair trial by the trial court
and the matter reaches the appellate court after
conclusion of the trial, the recourse to the provisions
contained in section 391 has to be made sparingly and
in deserving cases where the dictate of justice
commands.
12 A proftable reference can be made to a three
Judge Bench judgement of the Supreme Court in the
case of Rajeswar Prasad Misra Vs. The State of West
Bengal & Anr. 4, wherein the supreme Court
expounded the scope of the provisions contained in
section 428 of the Code of Criminal Procedure, 1898,
the precursor to section 391 of the Code. The
observations of the Supreme Court in paragraph 9 are
instructive and they are extracted below :
"(9) Additional evidence may be necessary for a
variety of reasons which it is hardly necessary
4 AIR 1965 SCC 1887
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(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 justifed,
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 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..............."
(emphasis supplied)
13. The aforesaid pronouncement in the case of
Rajeswar Prasad Misra (Supra) was followed by the
Supreme Court in the case of Rambhau & Anr. Vs. State
of Maharashtra 5, and a note of caution was
administered. The court observed, in clear and explicit
terms, that the provisions contained in section 391
cannot be restored to, to fll up the lacuna, but to sub-
serve the ends of justice. It was in terms observed that
the additional evidence cannot be and ought not to be
received in such a way so as to cause any prejudice to
the accused. The observations of the Court in
paragraphs 2 to 4 are of material signifcance. They read
as under:-
"2 A word of caution however, ought to be
introduced for guidance, to wit: that this additional
evidence cannot and ought not to be received in
such a way so as to cause any prejudice to the
accused. It is not a disguise for a re-trial or to
change the nature of the case against the accused.
This Court in the case of Rejeswar Prasad Misra v.
5 (2001) 4 SCC 759
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State of West Bengal and another (AIR 1965 SC
1887) in no uncertain terms observed that the order
must not ordinarily be made if the prosecution has
had a fair opportunity and has not availed of it.
This Court was candid enough to record however,
that it is the concept of justice which ought to
prevail and in the event, the same dictates exercise
of power as conferred by the Code, there ought not
to be any hesitation in that regard.
3 Be it noted that no set of principles can be set
forth for such an exercise of power under Section
391, since the same is dependant upon the fact-
situation of the matter and having due regard to the
concept of fair play and justice, well being of the
society.
4 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 fnality 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 fll up the
lacuna but to sub-serve 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."
(emphasis supplied)
14. In the case of Zahira Habibulla H. Sheikh & Another vs.
State of Gujarat and Ors. 6, in the backdrop of the peculiar
facts of the case therein, after adverting to the aforesaid
pronouncement in the case of Rambhau & Anr. (Supra), the
Supreme Court enunciated the object and scope of section
391 of the Code. The Supreme Court observed, inter-alia, as
under :
"47 .............................The primary object of
Section 391 is the prevention of guilty man's escape
through some careless or ignorant proceedings
before a Court or vindication of an innocent person
6 (2004) 4 SCC 158
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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.
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 fnds that certain evidence is
necessary in order to enable it to give a correct and
proper fndings, it would be justifed in taking action
under Section 391.
49 There is no restriction in the wording of
Section 391 either as to the nature of the evidence
or that it is to be taken for the prosecution only or
that the provisions of the Section are only to be
invoked when formal proof for the prosecution is
necessary. 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 the
discretion of the appellate Court................."
50 In Rambhau and Anr. Vs. State of
Maharashtra (2001 (4) SCC 759) it was held that
the object of Section 391 is not to fll in lacuna, but
to subserve the ends of justice. The Court has to
keep these salutary principle in view. Though wide
discretion is conferred on the Court, the same has
to be exercised judicially and the Legislature had
put the safety valve by requiring recording of
reasons."
(emphasis supplied)
15. The aforesaid pronouncements were again
followed by the Supreme Court in the case of Ashok
Tshering Bhutia Vs. State of Sikkim 7 and again the
extraordinary and exceptional nature of the power to
admit additional evidence, at the appellate stage, was
underscored. The observations in paragraphs 28 and 29
7 (2001) 4 SCC 402
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read as under :
"Additional Evidence:
28 Additional evidence at 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 satisfed 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.
29 The primary object of the provisions of
Section 391 Cr.P.C. is the prevention of a guilty
man's escape through some careless or ignorant
action on part of the prosecution before the court
or for vindication of an innocent person
wrongfully accused, where the court omitted to
record the circumstances essential to elucidation
of truth. Generally, it should be invoked when
formal proof for the prosecution is necessary.
(Vide Rajeswar Prasad Misra v. The State of West
Bengal & Anr., AIR 1965 SC 1887; Ratilal Bhanji
Mithani v. The State of Maharashtra & Ors., AIR
1971 SC 1630; Rambhau & Anr. v. State of
Maharashtra, AIR 2001 SC 2120; Anil Sharma &
Ors. v. State of Jharkhand, AIR 2004 SC 2294;
Zahira Habibulla H. Sheikh & Anr. v. State of
Gujarat & Ors., (2004) 4 SCC 158; and Sidhartha
Vashisht @ Manu Sharma v. State (NCT of Delhi),
AIR 2010 SC 2352)."
(emphasis supplied)
16. In the backdrop of the enunciation of the aforesaid legal
position, reverting to the facts of the case, in order to appraise the
correctness of the exercise of discretion by the appellate court, in
the light of the averments in the application, extracted above, it
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becomes evident that the sole ground sought to be put-forth by
the petitioner-accused is of chancing upon a photostat copy of the
cheque in the month of June 2017, post pronouncement of the
judgment by the trial court. Interestingly, in paragraph 4 of the
application, what the petitioner asserts is that the photostat copy
of the cheque was found while dealing with the case documents.
The petitioner neither asserts that she was not in possession of
the document nor was she unaware of the existence of the said
document. Moreover, it is not the case of the petitioner that the
photostat copy of the cheque was allegedly found while perusing
some other record. In contrast, the petitioner asserts that the
photostat copy of the cheque was indeed found while dealing with
the case documents. Meaning thereby, while perusing the
documents pertaining to the subject prosecution.
17. At this stage, the time lag of almost 9 years assumes critical
signifcance. According to the complainant, the subject cheque
was delivered in the month of December 2008. The accused
asserts discovery of its photostat copy in the month of June 2017.
It would be diffcult to accede to the submission on behalf of the
petitioner that the petitioner could not have asserted the existence
of or produced the photostat copy of the cheque, despite due
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diligence.
18. Secondly, the nature of the documents sought to be adduced
by way of additional evidence also assumes importance. A
photostat copy by its very nature is vulnerable to allegations of
manipulation. Different considerations come into play when a
copying process in itself ensures correctness of copy's contents
qua the original. In the absence of any contemporaneous material
in the nature of acknowledgment or otherwise, a plea that a
photostat copy of the instrument in question was found after
about 9 years of its execution to bolster up the defence that when
the original instrument was delivered, it was in a state, which the
photostat suggests, cannot be readily acceded to. While
considering a prayer for leading additional evidence, at the
appellate stage, if the additional evidence sought to be led is of
such character that its existence and authorship cannot be
disputed, such evidence lends assurance to the exercise of
discretion. Where, the evidence sought to be led is of impeachable
character, like a photostat copy of a negotiable instrument, the
exercise of discretion to allow leading of such evidence is
conditioned by a greater caution.
19. In the case at hand, if the petitioner is allowed to lead the
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evidence, as proposed, it has the propensity to reopen the entire
trial, partaking the character
20. the aspect of the date on which the subject cheque was
payable.
21. In the totality of the circumstances, the learned Additional
Sessions Judge, in my view, committed no error in disallowing the
applicant to lead additional evidence. In any event, the exercise of
discretion by the learned Additional Sessions Judge is not vitiated
by such elements of perversity or unreasonableness as would
warrant exercise of extraordinary writ jurisdiction.
22. The conspectus of the aforesaid consideration is that the
petition deserves to be dismissed.
23. Hence, the following order :
ORDER
The Petition stands dismissed.
Rule discharged.
In the circumstances, there shall be no order as to
costs.
( N.J. JAMADAR, J. )
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