Kerala High Court
Sudharma Sadanandan vs K. Sivadasan on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
OP(CRL.) NO. 26 OF 2020
COMMON ORDER DATED 12.12.2019 IN CRL.M.P.NOS.3492/2019 AND
3761/2019 IN CRL.APPEAL NO.94/2018 AND IN CRL.M.P.NO.4754/2019 IN
CRL.APPEAL NO.94/2018 PENDING ON THE FILE OF THE ADDITIONAL
SESSIONS JUDGE-III, PATHANAMTHITTA
PETITIONER/RESPONDENT/RESPONDENT/COMPLAINANT:-
SUDHARMA SADANANDAN,
W/O.SADANANDAN, SS COTTAGE, (SARATH NIVAS) VAYALA
VADAKKU, VARYAPURAM.P.O, KONNI,
PATHANAMTHITTA DISTRICT
BY ADVS.SRI.M.T.SURESHKUMAR
SRI.R.RENJITH
RESPONDENTS/PETITIONER/APPELLANT/ACCUSED & STATE:-
1 K. SIVADASAN,
AGED 51 YEARS,
S/O.LATE KUTTAPPAN, KANJIRAVILA PUTHEN VEEDU,
THAKADIYETHUMUKKU, MAROOR MURI, MALASSERRY.P.O,
PRAMADOM VILLAGE, KONNI THALUK,
PATHANAMTHITTA DISTRICT PIN-689646
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
R1 BY ADV SRI.ARUN.B.VARGHESE
R2 BY PUBLIC PROSECUTOR SRI M.P.PRASANTH
THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P (Crl) No.26 of 2020 2
JUDGMENT
Dated this the 20th day of October, 2021
This Original Petition is filed challenging a common order
passed by Additional Sessions Judge-III, Pathanamthitta (for
short 'the appellate court') on 12.12.2019 in
Crl.M.P.Nos.3492/2019 , 3761/2019 and 4754/2019 which have
been filed in Criminal Appeal No. 94/2018. The appellate court
has allowed the applications which have been filed as
Crl.M.P.Nos.3492/2019 and 3761/2019 under Section 391 Cr.P.C.
seeking to receive additional evidence. O.P.No.4754/2019 was
filed seeking to recall PW1 and re-examine him for marking the
documents proposed to be received additionally. The court below
allowed all three applications.
2. According to the learned counsel for the petitioner, the
appellate court has gone wrong in allowing the applications by
the impugned order. According to him even though Section 391
is there in the Cr.P.C. permitting reception of additional evidence,
the Apex Court has held in Rambhau And Another v. State of
Maharashtra [2001 (4) SCC 759 = 2001 (2) Crimes (SC) 231]
that the court has to exercise it's discretion to receive additional
evidence with caution. According to the learned counsel, the
respondent could have produced the documentary evidence now
proposed to be adduced, before the trial court itself, since those
were in his custody then. According to the learned counsel, the
production of documents before this Court at the fag end of
disposal of the case and the present attempt seeking reception
can only be viewed as a delay tactics.
3. The learned counsel for the respondents has
contended that the documents proposed to be marked in
additional evidence are nothing but the judgment passed in a
suit for realisation of money based on the disputed cheque and
the decree passed therein. According to him the other
documents proposed to be marked in additional evidence are the
depositions of the witnesses in the original suit and certain
account statements relating to the monetary transaction
involved. According to him those were out of knowledge of the
respondent at the relevant time when the trial was held. The
judgment and decree were passed in the civil suit, subsequent to
pronouncing of the judgment in the prosecution initiated under
Section 138 NI Act. The learned counsel for the respondents has
also produced Brig.Sukhjeet Singh (Retd) MVC v. State of Uttar
Pradesh and Others [2019 KHC 6070] wherein the Apex Court
has held that in Appeal against conviction the appellate court is
not barred from exercising the power under Section 391 Cr.P.C.
to receive additional evidence.
4. This Court has also noticed on a reading of Section
391 Cr.P.C. that a wide discretion is conferred by that provision
on the appellate court to receive additional evidence, if it finds
those as very much relevant for disposal of the appeal on its
hand. It is found that the discretion conferred has been correctly
exercised by the court and therefore, the impugned common
order cannot be said to be illegal or infirm. The trial court shall
shut down evidence proposed to be adduced by the petitioner
only on being convinced of its' inadmissibility. Undoubtedly, the
petitioner will also be able to controvert the witnesses' version by
cross examining them. The witnesses can also be discredited on
the basis of the documents. As held by the Apex Court in
Rambhau supra, the court shall exercise caution while receiving
additional evidence and to look into its' relevancy while
appreciating it for pronouncing judgment.
With the above observations, O.P.(Crl) is dismissed and the
impugned order is confirmed.
Sd/-
MARY JOSEPH
JUDGE
MJL
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMMON ORDER DATED
12.12.2019 IN CRL.M.P.NOS.3492/2019 AND
3761/2019 ON THE FILE OF THE ADDITIONAL
SESSIONS JUDGE-III, PATHANAMTHITTA
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 12.12.2019 IN
CRL.M.P.NO.4754/2019 ON THE FILE OF THE
ADDITIONAL SESSIONS JUDGE-III,
PATHANAMTHITTA
EXHIBIT P3 TRUE COPY OF THE PETITION AND AFFIDAVIT IN
CRL.R.P.3492/2019
EXHIBIT P4 TRUE COPY OF THE PETITION AND AFFIDAVIT IN
CRL.M.P.NO.3761/2019
EXHIBIT P5 TRUE COPY OF THE PETITION AND AFFIDAVIT IN
CRL.M.P.NO.4754/2019
EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER
RESPONDENTS' EXHIBITS:
EXHIBIT R1 (a) TRUE COPY OF THE JUDGMENT DATED 28.2.2019
IN O.S. NO 5/2017 OF THE COURT OF THE
SUBORDINATE JUDGE, PATHANAMTHITTA
EXHIBIT R1 (b) TRUE COPY OF THE DECREE DATED 28.2.2019 IN
O.S. NO 5/2017 OF THE COURT OF THE
SUBORDINATE JUDGE, PATHANAMTHITTA
EXHIBIT R1 (c) TRUE COPY OF THE DEPOSITION OF P.W.1 IN
O.S.NO 5/2017 BEFORE THE COURT OF THE
SUBORDINATE JUDGE, PATHANAMTHITTA
TRUE COPY
PA TO JUDGE
MJL
