Sumitra Tuteja vs Vipin Kumar Tiwari And Anr
2021 Latest Caselaw 4252 P&H

                         CRR-2330-2018 (O&M)                [1]


         IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                     Criminal Revision No.2330 of 2018(O&M)
                                          Date of Decision: December 09, 2021

Sumitra Tuteja                                                    ...Petitioner

                                            Versus

Vipin Kumar Tiwari and another                                    ...Respondents


CORAM: HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
           --

Present: -    Mr.Naveen S.Bhardwaj, Advocate
              for the petitioner.

              Mr.Kartar Singh, Advocate
              for the respondents.

                     -

HARINDER SINGH SIDHU, J.

Challenge in this petition is to the order dated 06.07.2018

passed by the Ld. Additional Sessions Judge, Faridabad, whereby, the

application under Section 391 CrPC for permission to lead additional

evidence, filed by the petitioner - accused, was dismissed.

A Criminal Complaint under Section 138 of the Negotiable

Instruments Act was filed by Vipin Kumar and Mahender Kumar -

respondents against Sumitra Tuteja - petitioner and her husband Hans Raj

Tuteja, on account of dishonor of Cheque No.436422 dated 28.04.2011 for

Rs.15,00,000/- drawn on Punjab National Bank, Umra Gate, Hansi. The

Ld. Judicial Magistrate Ist Class, Faridabad vide judgment and order dated

01.05.2015 convicted the petitioner under Section 138 of the Act and

sentenced her to undergo simple imprisonment for a period of six months.

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                      CRR-2330-2018 (O&M)                  [2]

Compensation of Rs.22,50,000/- was to be paid to the respondents within

one month from the passing of the order. In default, she was to further

undergo simple imprisonment for a period of one month.

The petitioner filed appeal before the Ld. Additional Sessions

Judge, Faridabad under Section 374(3) CrPC. During the pendency of the

said appeal, the petitioner filed an application under Section 391 CrPC

seeking permission to lead additional evidence. In the application it was

pleaded that at the time of arguments it had come to notice that an amount

of Rs.10,00,000/- had been transferred by the petitioner in the account of the

complainant - respondent No.1 in the year 2010. The cheque in dispute

dated 20.04.2011 had been used by the complainant six months after the

transfer of the amount of Rs.10,00,000/-. It was pleaded by the petitioner

(applicant - appellant therein) that the Trial Court had not discussed about

the transfer of the said amount through RTGS. Certain other important facts

had come to the notice of the petitioner which were very necessary for the

just decision of the case. Hence, the petitioner wanted to lead additional

evidence by examining following witnesses:

1) MHC of Police Station Bhawani Khera, district Bhiwani pertaining to record of affidavit dt.21.1.2011 and 24.1.2011 submitted by the complainants and the Daily Dairy Report dated 24.01.2011;

2) Concerned official/Clerk from PNB, Umra Gate, Hansi (Hisar), pertaining record of allegedly misplaced cheque No.436422, and cheque No.436423, 436424, 436425 on the basis of which Demand Draft of M/s Tuteja Transport Company prepared in the name of Vipin Kumar Tiwari the complainant;

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CRR-2330-2018 (O&M) [3]

3) Concerned Clerk/official from SBI (previously known as State Bank of Patiala) situated at village and Post Office Jui, Tehsil and District Bhiwani, pertaining account statement reflecting the record of RTGS dt. 24.11.2010 for an amount of Rs.4,50,000/- dated 2.12.2010 for an amount of Rs.4,00,000/- from account No.55115341024 in the name of M/s Shiv Shankar Service Station;

4) concerned Clerk/official from State Bank of India, Mini Sect. Faridabad pertaining record of account statement of A/c No.31137359567 in the name of Vipin Kumar Tiwari and Smt. Sandhya Tiwari reflecting the entries of RTGS of Rs.4,50,000/- and Rs.1,50,000/- on dt. 24.11.2010, Rs.4,00,000/- on dt. 2.12.2010 and

5) Concerned registry Clerk from office of Sub Registrar, Faridabad, pertaining the record of sale deed bearing document No.15426 dated 24.01.2011 executed by Rituraj in favour of Smt. Usha Rani wife of Mahender Kumar and Smt. Sandhya Kumari wife of Vipin Kumar Tiwari.

Besides, the petitioner also intended to prove on record certain certified

copies of statements of witnesses recorded in some other Court and

judgments passed by the said Courts.

The application was contested by the respondent-complainant

by contending that the appeal had been pending for three years without any

application having been moved. The applicant had availed ample

opportunities to lead evidence in defence. It was contended that the

application had been filed only to cause delay. Specific reply was given

regarding each witness sought to be examined. Regarding MHC of P.S.

Bhawani Khera it was stated that he was not required to be examined as the

DDR was already on record. The Clerk of PNB was irrelevant as the

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CRR-2330-2018 (O&M) [4]

contention regarding misplacing of the cheque had already been discussed

by the Trial Court. The clerk of the SBI was not relevant as the fact of

RTGS was already on record and the Statement of Accounts was on record

as Mark-A. The concerned Clerk of SBI, Mini Secretariat and Faridabad

was not relevant as the fact of RTGS had been discussed by the Trial Court.

The Ld. Additional Sessions Judge noted that as per record the

case had remained pending for defence evidence from 12.09.2014 to

28.04.2015. The petitioner had availed more than twelve effective

opportunities to lead defence evidence but had not summoned the said

witnesses. It was not the case of discovery of a new fact or evidence but the

said evidence was in the knowledge of the petitioner since the very inception

of the litigation. Moreover, as the documents were already on record, it

agreed with the contention of the complainant- respondent that the entire

effort of the petitioner was to delay the disposal of the case.

The Court concluded it was not an exceptional case where ends

of justice demanded that additional evidence be permitted to be led at the

appellate stage. Accordingly, the application was dismissed.

Having heard Ld. Counsel for the parties, I find no infirmity in

the impugned order.

The parameters for exercise of power under Section 391 Cr.P.C.

are well settled. The primary test is that additional evidence under Section

391 may be taken with an object to appropriately decide the appeal by the

appellate court to secure ends of justice. The power is to be exercised

sparingly and only in suitable cases. But once such action is justified, there

is no restriction on the kind of evidence which may be received.

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                         CRR-2330-2018 (O&M)                    [5]

In this case the DDR, the copies of demand drafts and

Statement of Account were already before the trial Court and had been relied

upon by the petitioner. There was no reason or justification for allowing the

application.

Thus, this petition is dismissed.

December 09, 2021                            (HARINDER SINGH SIDHU)
gian                                                 JUDGE

                    Whether Speaking / Reasoned       Yes

                    Whether Reportable              Yes / No




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