Jharkhand High Court
M/S Priyanka Buildcon Pvt. Ltd vs The State Of Jharkhand on 11 September, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:27804)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 390 of 2024
M/s Priyanka Buildcon Pvt. Ltd., a company registered under the
Indian Companies Act having its office at 4, I.C. Road, C.H. Area, P.O.
& P.S.-Bistupur, Town-Jamshedpur, Dist.-East Singhbhum being
represented by one of its Director Mr. Ashok Sharma, son of Sri
Chothmal Sharma, r/o 9 Ranapratap Path, Uliyan, Kadma, P.O. & P.S.-
Kadma, Town-Jamshedpur, Dist.-Singhbhum East
.... Petitioner
Versus
1. The State of Jharkhand
2. Harish Sharma @ Harish Shriniwash Sharma, son of Shree Niwas
Sharma, resident of B-20, Galajlori, P.O. & P.S.-Ahmadabad, Dist.-
Ahmadabad, State-Gujarat
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Rohan Mazumdar, Advocate
: Ms. Neeharika Mazumdar, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl. P.P.
For O.P. No.2 : None
.....
By the Court:-
1. Heard the parties.
2. Though notice has validly been served upon the opposite party
no.2 yet no one turns up on behalf of the opposite party no.2 in-
spite of repeated calls.
3. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of Cr.P.C. with the
(2025:JHHC:27804)
prayer to quash the order dated 07.12.2023 passed by the learned
Sessions Judge, Jamshedpur in Criminal Appeal No. 125 of 2023.
4. The brief fact of the case is that the petitioner is the complainant
of C/1 Case No.1644 of 2018 in which the opposite party no.2
herein is the accused. Vide judgment dated 21.06.2023, the
opposite party no.2 herein has been convicted for the offence
punishable under Section 138 of Negotiable Instruments Act and
sentenced to undergo simple imprisonment for a period of one
year and fine of Rs.64,80,000/-. Against the said judgment dated
21.06.2023, the opposite party no.2 herein filed Criminal Appeal
No. 125 of 2023 and during the pendency of the said criminal
appeal, the appellant filed a petition dated 08.09.2023 under
Section 391 Cr.P.C. stating therein that one Bikash Kumar
Agarwal is a material witness but he was not examined by the
appellant-accused person of the case in his defence nor was he
examined by the prosecution and his examination is necessary for
the just decision of the case. The said contention of the appellant
was accepted by the learned Sessions Judge, Jamshedpur on the
ground that the said Bikash Kumar Agarwal has put his signature
on the agreement.
5. Learned counsel for the petitioner relying upon the judgment of
the Hon'ble Supreme Court of India in the case of Ajitsinh
Chehuji Rathod vs. State of Gujarat & Anr. reported in 2024
INSC 63, paragraph no.9 of which reads as under:-
9. At the outset, we may note that the law is well-settled
by a catena of judgments rendered by this Court that
(2025:JHHC:27804)
power to record additional evidence under Section 391
CrPC should only be exercised 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.
(Emphasis supplied)
submits that the Hon'ble Supreme Court of India has reiterated
the settled principle of law that power to record additional
evidence under Section 391 Cr.P.C. should only be exercised when
the party making such request was prevented from presenting the
evidence in the trial court despite due diligence being exercised or
that the facts giving rise to such prayer came to light at a later
stage during the pendency of the appeal and that non-recording of
such evidence may lead to failure of justice.
6. It is next submitted by the learned counsel for the petitioner that
the learned Sessions Judge, Jamshedpur has not whispered a
word as to how non-recording of the evidence of Bikash Kumar
Agarwal may lead to failure of justice, when the agreement of
which he is the signatory has already been marked Ext.2 and 2/1.
It is then submitted by the learned counsel for the petitioner that
the impugned order has been passed in a mechanical and
erroneous manner, since the opposite party no.2 did not make any
effort to examine him as a witness, during the trial and now wants
to examine him as a witness by way of additional evidence to fill
up the gap of his defence. Hence, it is submitted that the prayer as
prayed for in this criminal miscellaneous petition be allowed.
(2025:JHHC:27804)
7. Learned Addl. P.P. appearing for the State on the other hand
opposes the prayer and submits that the very fact the learned
Sessions Judge, Jamshedpur has mentioned that the examination
of Bikash Kumar Agarwal is required for just decision of the case
goes to show that there was justification for his examination.
Hence, it is submitted that this criminal miscellaneous petition
being without any merit be dismissed.
8. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to mention here
that the Hon'ble Supreme Court of India in the case of Bir Singh
vs. State of Uttar Pradesh reported in AIR 1978 SC 59 had the
occasion to examine the scope of Section 391 of Cr.P.C. and
reiterated the settled principle of law that though an appellate
court has power to make additional evidence in a suitable case yet
the discretion should not be exercised to fill up gaps or lacunae in
the prosecution evidence.
9. Now coming to the facts of the case, it is not the case of the
opposite party no.2 herein, who is the appellant of Criminal
Appeal No. 125 of 2023 that the opposite party no.2 was
prevented from examining Bikash Kumar Agarwal 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 the pendency
of the trial or appeal. The undisputed fact remains that the
concerned agreement has already been brought on evidence by
the complainant-petitioner and the same has been marked Ext.2
(2025:JHHC:27804)
and 2/1. The learned Sessions Judge, Jamshedpur has failed to
mention the reason as to how non-recording of the evidence of
Bikash Kumar Agarwal is required for the just decision of the case
and has failed to consider the settled principle of law that at the
appellate stage, what was required was that, the additional
evidence can be taken when non-recording of such evidence may
lead to failure of justice unlike in the stage of trial where a witness
can be examined for the just decision of the case.
10. Accordingly, the order dated 07.12.2023 passed by the learned
Sessions Judge, Jamshedpur in Criminal Appeal No. 125 of 2023
being not sustainable in law is quashed and set aside.
11. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 11th September, 2025
AFR/Sonu-Gunjan/-
