Rajasthan High Court - Jodhpur

Pushkar Lal vs Narayan Lal Dangi (2024:Rj-Jd:8321) on 16 February, 2024

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2024:RJ-JD:8321]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
          S.B. Criminal Revision Petition No. 183/2024

Pushkar Lal S/o Hira Dangi, Aged About 40 Years, R/o Kanpur
Khera, Main Ghati, Tehsil Girwa, Dist. Udaipur.
                                                                       ----Petitioner
                                    Versus
Narayan Lal Dangi S/o Dalla Ji, R/o Kanpur Khera, Near Maharaj
Ki Mandi, Tehsil Girwa, Dist. Udaipur.
                                                                   ----Respondent



For Petitioner(s)         :     Mr. Abhishek Charan
For Respondent(s)         :     Mr. Mukesh Trivedi, PP
                                Mr. Deepak Menaria



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

16/02/2024

The present revision petitions under Section 397/401 Cr.P.C

have been filed against the order dated 25.01.2024 passed by

learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases,

Udaipur whereby, the application preferred by the petitioner under

Section 391 Cr.P.C. for adducing evidence was dismissed.

Brief facts of the case are that the respondent lodged a

complaint under Section 138 of the Negotiable Instruments Act,

against the petitioner, whereupon a case bearing

no.16532/2015 came to be registered against him before the

learned Special Judicial Magistrate No. 1 (N.I. Act

Cases), Udaipur. Thereafter, during the course of trial, the

complainant-respondent in his cross-examination stated that his

family had sold certain lands, in lieu of a consideration of Rs.

21,00,000/-, out of which a sum of Rs. 10,00,000/- was given to

the accused-petitioner. Thereafter, the accused-petitioner

[2024:RJ-JD:8321] (2 of 6) [CRLR-183/2024]

preferred an application under Sections 91 and 311 Cr.P.C. to

bring on the record the respondent's bank statements for the year

2012-2013 and the sale deed of the lands in question.

The learned Court below partly allowed the application

vide order dated 19.01.2021, granting the petitioner liberty to

produce the bank statements of respondent for year 2012-13, and

sale deed of land in question at the stage of his defence and

respondent will also have right to cross-examination.

Feeling aggrieved by the aforesaid order, the petitioner

preferred criminal misc. petition before this Court being S.B.

Criminal Misc. petition No. 8166/2022. The said misc. petition

came to be dismissed by co-ordinate Bench of this Court vide

order dated 20.12.2022.

Subsequently, on 13.01.2023, the petitioner filed an

application under Section 391 Cr.P.C. with the prayer to summon

and take the copy of registry on record. However, the trial court

rejected the said application filed by the petitioner vide order

dated 08.02.2023. Feeling aggrieved by the said order, the

petitioner preferred misc. petition being S.B. Criminal Misc.

petition No. 1882/2023. However, during pendency of the criminal

misc. petition, the petitioner came to be convicted vide order

dated 20.09.2023 and aforesaid criminal misc. petition was

withdrawn.

At the appellate stage, the petitioner preferred an application

under Section 391 Cr.P.C. for summoning the copy of registry of

the land sold by the respondent. The said application filed by the

petitioner came to be dismissed by the appellate court by way of

[2024:RJ-JD:8321] (3 of 6) [CRLR-183/2024]

impugned order dated 25.01.2024 while imposing a cost of

Rs.5,000/- upon the petitioner.

Counsel for the petitioner submits that the appellate court

has committed grave error of law in dismissing the application

filed by the petitioner under Section 391 Cr.P.C inasmuch as the

document is vital for just decision of the case. It is argued that

the petitioner has raised question with regard to financial capacity

of the complainant and therefore, it is essential to bring on record

the copy of registry of land sold by the complainant. It is prayed

that dismissal of the application under Section 391 Cr.P.C to bring

on record essential piece of evidence, will result into grave

injustice to the petitioner and therefore, the same is liable to be

allowed.

Per contra, learned Public Prosecutor and learned counsel for

the respondent supported the impugned order and argued that

the learned Court below while partly allowing the application

vide order dated 19.01.2021, granting the petitioner liberty to

produce the bank statements of respondent for year 2012-13, and

sale deed of land in question at the stage of his defence and

respondent will also have right to cross-examination. However,

despite ample opportunities, the petitioner failed to produce the

said document and now after conclusion of trial, at the appellate

stage, the petitioner is seeking to produce the said documents

only with an intention to delay the matter. Therefore, the

appellate court has rightly dismissed the application filed under

section 391 Crpc which does not call for any interference from this

Court.

[2024:RJ-JD:8321] (4 of 6) [CRLR-183/2024]

I have considered the rival contentions of the parties and

carefully gone through the documents on record.

At the outset it is relevant to discuss section 391 of Crpc

which is quoted herein below :-

" 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."

The reading of Section 391 Crpc, so also proposition of

law as laid down by the Hon'ble Supreme Court clearly leads to

form an opinion that the legislative intent in enacting Section

391 appears to be the empowerment of the appellate court to

see that justice is done between the parties and if the

appellate court finds that certain evidence is necessary in order

to enable it to give a correct and proper findings, it would be

justified in allowing further evidence under Section 391.

However, this power has to be exercised sparingly and in

exceptional cases where the court is satisfied that directing

[2024:RJ-JD:8321] (5 of 6) [CRLR-183/2024]

additional evidence would serve the interest of justice. In the

case in hand, the learned Court below partly allowed the

application filed by the petitioner vide order dated

19.01.2021 and granted liberty to the petitioner produce the

bank statements of respondent for year 2012-13, and sale

deed of land in question at the stage of his defence. Feeling

aggrieved by the aforesaid order, the petitioner preferred

criminal misc. petition before this Court being S.B. Criminal

Misc. petition No. 8166/2022. The said misc. petition came to

be dismissed by co-ordinate Bench of this Court vide order

dated 20.12.2022. However, the petitioner failed to produce

the aforesaid documents at the stage of his defence and now

at this belated appellate stage, the petitioner is seeking to

produce the documents.

Recently the Hon'ble Apex Court while considering the object

of section 391 Crpc in the case of Ajitsinh Chehuji Rathod vs

State of Gujarat and Anr. (SLP(Crl.) No(s). 16641 of 2023)

dated 29.01.2024 has observed 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 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."

[2024:RJ-JD:8321] (6 of 6) [CRLR-183/2024]

Thus, in order to exercise power contemplated under section

391 of Crpc, the appellate court must be satisfied that taking of

additional evidence is necessary. The court should not only

consider whether the accused had reasonable opportunity of

defending himself by adducing the proposed additional evidence,

the court should also consider the question whether the additional

evidence proposed to be adduced does have any relevancy.

Considering all the facts and circumstances of the case, this

court is of the opinion that the petitioner had filed the application

under section 391 Crpc as an afterthought and only with an

intention to delay the disposal of appeal. Thus, the appellate court