[Cites 8, Cited by 0]
Delhi High Court
Dibyendu Biswas vs Green Agrevolution Pvt Ltd on 12 March, 2026
$~78
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 12th March, 2026
+ CRL.M.C. 1796/2026 & CRL.M.A. 7398/2026 & CRL.M.A.
7399/2026
DIBYENDU BISWAS .....Petitioner
Through: Mr. Manu Beri, Mr. Varun Varma,
Mr. Arjun Kumar Jha, Ms. Susmita
Singh and Mr. Raunek Raheja,
[
Advocates.
versus
GREEN AGREVOLUTION PVT LTD .....Respondent
Through: Ms. Akanksha Sisodia, Advocate
(through V.C.)
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
1. Petitioner herein has been held guilty for commission of offence under
Section 138 of Negotiable Instruments Act, 1881 (NI Act) and vide order
dated 18.08.2025, he has been sentenced to undergo Simple Imprisonment
(SI) for a period of three months with direction to pay fine equivalent to Rs.24
lacs, which is to be paid to complainant as compensation.
2. Feeling aggrieved by the order of conviction and order on sentence, an
appeal was preferred which was registered as Criminal Appeal No.346/2025.
3. While lodging such appeal, the appellant i.e. petitioner herein also filed
an application under Section 391 of the Code of Criminal Procedure, 1973
(Cr.P.C), (corresponding Section 432 BNSS) seeking permission to lead
additional evidence with direction to respondent to produce his complete
bank account statements for the relevant period, while asserting that these
documents were vital in nature and directly impacted the existence of 'legally
enforceable debt'.
4. His such application has been dismissed by the learned First Appellate
Court vide order dated 17.02.2026.
5. Such order is under challenge.
6. The complaint in question was filed way back in the year 2022 and as
per the complainant, the total outstanding against the accused was of
Rs.19,85,692/-. According to the complainant, the accused i.e. petitioner
herein, had even acknowledged the outstanding liability vide communications
issued in the year 2021. In discharge of his liability, the concerned, allegedly,
accused issued five cheques for total sum of Rs.20 lacs and when deposited,
these cheques returned unpaid for "funds insufficient". Though, the legal
notice issued by the complainant was duly responded, no payment was made
by the accused and it was in the abovesaid backdrop, the complaint was filed.
7. As per the averments made in the application filed by the petitioner
before the learned First Appellate Court whereby he wanted to lead additional
evidence, it was contended that the complainant had deliberately withheld
material documents such as bank account statements and according to him,
even prior to the presentation of cheques in question, there was payment of
Rs.1 lac to the complainant through Paytm and, thereafter also, a sum of
Rs.35,000/- was paid through Paytm and these entries were never reflected in
the ledger statement produced by the complainant before the learned Trial
Court. Moreover, such ledger statement was not accompanied by mandatory
certificate in terms of Section 65B of the Indian Evidence Act, 1872. Learned
counsel for the petitioner places reliance upon Harish v. Anita Gupta (in
CRLM.C. 2219/2025 and CRL.M.C. 2222/2025) passed by learned
Coordinate Bench of this Court vide judgment dated 04.08.2025 and submits
that the primary object of Section 391 Cr.P.C. is to enable the Appellate Court
to secure the ends of justice and to prevent miscarriage of justice and
therefore, petitioner should not be punished for inadvertent lapse on the part
of his counsel.
8. Fact, however, remains that these payments had been made by the
petitioner himself and thus he was in the thick of things from day one. When
the concerned authorized representative of the complainant entered into
witness box on 23.11.2024, all such relevant questions could have been easily
put to such witness. However, no endeavour was made in said direction.
9. When, after recording statement of accused under Section 313 Cr.P.C.,
there was an opportunity for the accused to lead his evidence, for totally
inexplicable reasons, he did not enter into the witness box and did not
highlight the alleged aspect of abovesaid two payments.
10. Evidently, the petitioner himself is responsible for his miseries, as
despite being in the thick of things, he neither confronted the complainant
with the abovesaid payment nor proved the same in affirmation by entering
into witness box. The Appellate Court is not mandated to come to the aid and
assistance of the petitioner for collecting defence evidence at his behest. Fact
also remains that Section 391 Cr.P.C. would come into play only when any
such applicant is able to show that such evidence, which he proposes to
produce at a later stage, was not in his possession or was beyond his control,
at the earlier stage. Nothing of that kind exists here. The alleged transaction of
Rs.1,35,000/- is of the year 2022 and, therefore, these were well within the
knowledge and possession of the petitioner and, there was nothing to prevent
him from producing the abovesaid evidence during the pendency of the
complaint in question and, therefore, the endeavour of the petitioner is
belatedly and purely on account of his own inaction. Reference in this context
may be made to the judgment in Ajitsin Chehuji Rathod v. State of Gujarat &
Anr. (2024) 4 SCC 453 wherein the Hon'ble Supreme Court has observed that
power under Section 391 Cr.P.C. should be exercised only when the party
making such request 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
non- recording of such evidence may lead to failure of justice.
11. The bald averment that any litigant should not be made to suffer on
account of the inaction on part of his counsel would not take the case of the
applicant anywhere.
12. If according to the petitioner, the cheques were mere security cheques
and could not have been presented, and if the ledger statement is inadmissible
in evidence for want of mandatory certificate, such aspects can always be still
highlighted by him at the time of arguments in the main appeal.
13. In view of the above, this Court does not find any reason to interfere
with the impugned order.
14. However, the abovesaid observations are only in the context of the
disposal of the present petition and would not prejudice the mind of the
learned First Appellate Court, either way.
15. The petition is disposed of in aforesaid terms.
16. The pending applications also stand disposed of in aforesaid terms.
(MANOJ JAIN)
JUDGE
MARCH 12, 2026/ss/sa
