Criminal Writ Petition No. 126 of 2010

1st July, 2011

Petitioner Counsel: Mr. P.N. MEHTA
Respondent Counsel: Mr. F.T. MIRZA,Mr. A.I. SHEIKH

Cases Cited:
Zehira Habibullah H. Sheikh and another Vs. State of Gujrat and Ors., AIR 2004 SC 3114 [Para 9,15]
Rajeswar Prasad Mishra Vs. the State of West Bengal, AIR 1965 SC 1887 [Para 12]
State of Gujarat Vs. Mohanlal Jitamalji Porwal and anr., AIR 1987 SC 1321 [Para 12]
Rambhau and another Vs. State of Maharashtra, AIR 2001 SC 2120 [Para 12]
Anil Sharma and others Vs. State of Jharkhand, (2004) 5 SCC 679 [Para 12]
Mamata Devi w/o. Prafullakumar Bhansli Vs. Vijaykumar Mamraj Agrawal, 2007(6) Mh.L.J. 809 [Para 16]
Abdul Latif and Ors. Vs. State of Uttar Pradesh, AIR 1978 SC 472 [Para 17]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard Mr. P.N.Mehta, Adv. for the Petitioner, Mr.F.T.Mirza, Adv. for Respondent No.1 and Mr.A.I.Sheikh, Adv. for Respondent No.2.

2. By this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner has approached this Court for quashing and setting aside the order dt.30.1.2010 passed by the learned Additional Sessions, Kelapur in Criminal Appeal No.21 of 2008.

3. It appears that the present petitioner was prosecuted in a Complaint Case u/s. 138 of the Negotiable Instruments Act in the Court of the Judicial Magistrate, First Class, Pandharkawada in Summary Criminal Case No.374 of 2008 decided on 29.11.2008 whereby the petitioner was convicted for the offence punishable u/s. 138 of the Negotiable Instruments Act and was sentenced to suffer simple imprisonment for three months and to pay a fine in the sum of Rs.3,50,000/-; in default of payment of fine, he was directed to further undergo simple imprisonment for one month. The amount of fine, if recovered, was directed to be paid to the complainant Mehandibhai as compensation u/s. 357 (1) of the Code of Criminal Procedure.

4. It appears that the complainant had filed a complaint against the accused alleging commission of offence punishable u/s. 138 of the Negotiable Instruments Act on the ground that the petitioner (Original accused) had issued a cheque on 25.11.2007 in the sum of Rs.3,00,000/- drawn upon the Yavatmal Zilla Madyavarti Bank Ltd. Yavatmal. The said cheque was returned dishonored on 31st December, 2007. The complainant had issued demand notice dt.10.1.2008 demanding amount of the cheque. No reply was sent to that notice by the petitioner/accused. Thus, the complaint was filed. During the complaint proceedings, the petitioner/accused defended the prosecution on the ground that he had not entered into any transaction with the complainant and he did not know the complainant. The petitioner/accused also defended the complaint on the ground that he was introduced with the complainant by a mediator in the transaction ("Nagmani" transaction) and that the petitioner/accused had issued the cheque (Exh.24) in order to save the complainant from harassment from his family members. The petitioner/accused had also defended the complaint on the ground that the cheque was issued by way of security, even though he was not liable to pay anything to the complainant.

5. After recording evidence of the complainant as well as relying upon on behalf of the defence, the learned trial Magistrate, after hearing the learned Advocate representing the parties, proceeded to disbelieve the case of the petitioner/accused in the trial Court and convicted him of the offence punishable u/s.138 of the Act as mentioned above.

6. It appears that the petitioner/accused challenged the judgment and order passed by the trial Magistrate by filing Criminal Appeal No.21 of 2008 before the learned Additional Sessions Judge, Pandharkawada (Kelapur). It appears that, during pendency of the Criminal Appeal No.21 of 2008, on or about 3rd February, 2009, an application was filed before the learned Additional Sessions Judge with a prayer seeking adjournment of three months to comply with the order passed by the learned Additional Sessions Judge on 14.1.2009 to deposit a sum of Rs.1,50,000/- within four weeks. It also appears that the Court was informed that the appellant will pay the sum of Rs.5,25,000/- within a period of three months and in consideration thereof, the respondent will withdraw the complaint against the petitioner/accused. But, adjournment was sought on the ground that the appellant is intending to sell his agricultural land.

7. Under these circumstances, it appears that another application was preferred by the petitioner on 2nd May, 2009 through another Advocate alleging that his Advocate (added respondent no.2 in this petition during pendency of this petition) cheated him and threatened him to file an application. It is also alleged that the complainant threatened to kill the petitioner/accused if the amount is not paid. On these grounds, the appellant disowned the earlier application informing about the compromise between the complainant and the accused and prayed for hearing the appellant on merits. The Advocate representing the petitioner also filed an application for personal exemption of the petitioner on the ground that the complainant gave threat to kill him if the amount is not paid. Such an application was made on 2.5.2009. Accordingly, the Station House Officer of Police Station, Pandharkawada was also moved on 12.5.2009.

8. It is under these circumstances that another application was tendered on 4th December, 2009 purportedly u/s. 391 of the Code of Criminal Procedure for permission to lead additional evidence. The application averred that the impugned cheque was never issued in discharge of any lawful debt or for any lawful consideration. It is also averred that the cheque was obtained by the complainant because the complainant was put to loss of Rs.5,00,000/- in the deal of purchase of Nagmani and to avoid harassment from the family members of the complainant, but the complainant played mischief by presenting the cheque for encashment. It is further averred that the complainant had approached the accused for compromise in the Office of one Mr.Jalpatkar, Adv. and during conversation with the petitioner and his Advocate in June, 2009, the complainant admitted falsity in prosecution of the accused and that the entire conversation was video-graphed. Thus, the petitioner/accused sought to produce video-graphed C.D. as additional evidence u/s. 391 of the Code of Criminal Procedure. He further claims that he is innocent and must get an opportunity to unmask the complainant.

9. The learned Sessions Judge, Pandharkawada, by a detailed order passed on 30th January, 2010, rejected the application making reference to the contradictory nature of defences adopted by the accused as also the nature of defence already put forth and sought to be put forth regarding the cheque encashed. It appears that, in the Additional Sessions Court, Pandharkawada, the petitioner had relied upon the ruling in the case of Zehira Habibullah H. Sheikh and another. vs. State of Gujrat and Ors. reported in AIR 2004 SC 3114 and observed that there can be no debate as regards the principles laid down by the Supreme Court. However considering the matter before it, the learned Additional Sessions Judge observed that it is vastly different than that it was before the Supreme Court. Meaning thereby, that entirely a new piece of evidence brought into existence during pendency of the appeal is sought to be brought on record to substantiate the defence version. The learned Additional Sessions Judge also considered the defence of the accused throughout the trial admitting issuance of cheque in the sum of Rs.3,00,000/- as also transaction of "Nagmani" pleaded as defence in rebuttal of statutory presumptions in favour of the complainant. It appears that the learned Additional Sessions Judge did peruse the conversation sought to be produced on record which is in the form of transcription. According to the learned Advocate for the petitioner/accused, the learned Additional Sessions Judge also viewed the CD in his chamber. Be that as it may, the learned Additional Sessions Judge has expressed his opinion thus :

" .... Therefore, apparently the conversation is not sufficient to bring him the defence sought to be built up".

10. It is further observed by the Appellate Judge that " if evidence which is manipulated or procured subsequent to a trial is produced on record it would run afoul to the very purpose and intent of enacting provision of Section 391 of the Cr.P.C." The learned Appellate Judge also noted the conduct of the accused/appellant during pendency of the appeal in protracting the litigation by moving various applications referred to in the impugned order. Thus, in the facts and circumstances noted by the learned Appellate Judge, he concluded that they were not sufficient to invoke the powers u/s. 391 of the Code of Criminal Procedure.

11. One cannot dispute that the object of Section 391 is to subserve the ends of justice and to get at the truth and power u/s. 391 can be exercised by the Appellate Court to arrive at the truth. The Apex Court had observed that primary object of Section 391 is to prevent escape of a guilty man through some careless or ignorant proceedings before a Court or vindication of innocent person wrongfully made accused. Power u/s. 391 of the Code of Criminal Procedure enables the Appellate Court to ensure that justice is done and correct and proper findings are recorded in a given case. Therefore, there can be no quarrel over the proposition that the Appellate Court does have power to take additional evidence which is necessary for arriving at a just decision of the case.

12. The learned Advocate for the petitioner in this regard also made

a reference to the rulings in the cases of Rajeswar Prasad Mishra vs. the State of West Bengal reported in AIR 1965 SC 1887; State of Gujarat vs. Mohanlal Jitamalji Porwal and anr. reported in AIR 1987 SC 1321; Rambhau and another vs. State of Maharashtra reported in AIR 2001 SC 2120 and Anil Sharma and others vs. State of Jharkhand reported in (2004) 5 SCC 679.

Section 391 of the Code of Criminal Procedure reads thus :

" S.391 (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."

13. The Appellate Court can exercise power to take additional evidence or direct it to be taken provided that it records its reasons for the same. It is only then the Appellate Court could either record such further evidence or direct it to be recorded by the Sub-ordinate Court as mentioned in Section 391 (4). It is the discretion of the Appellate Court to receive such additional evidence if it is necessary, but nobody can be allowed to claim as a matter of right that such evidence must be taken or accepted, as, it may allow either of the parties to fill up the lacunas or gap in evidence recorded by the trial Court.

14. The learned Advocate for the respondent/complainant opposed the prayer vehemently on the ground that the conduct of the petitioner/accused throughout the trial as well as during pendency of the appeal ought to be noted. He made reference to the copies of roznamas from the Appellate Court during the period from 24.12.2008 to 19.1.2011 in order to submit that the petitioner/accused was represented by the various Advocates during the various stages of the proceedings. While the petitioner/accused prayed for suspension of sentence in December, 2008, he was represented by one Mr.D.P.Mohod, Adv. Later when he prayed for the case to be taken on Board on the ground of urgency on 1st January, 2009, he was represented by one Ms M.S.Janpatkar, Adv. Later, after the order was passed for suspension of sentence on 7.1.2009, he was represented by Adv. Mutyalwar. On 13.1.2009, another Advocate was engaged by the petitioner/accused by name Mr.Dhatrak and on 3.2.2009, the petitioner/accused engaged another Advocate Mr.I.S.Gazi (respondent no.2 herein) when extension was sought from the Appellate Court to comply with the order suspending the sentence. On 25.8.2009, the petitioner/accused chose to engage Mr.P.N.Mehta, Adv. from Nagpur and on 19.9.2009, power was filed by another Advocate Mr.Chowdhary. On 20.12.2010, Vakalatnama was filed by one Mr.P.B.Dethe, Adv. on behalf of the petitioner/accused in the pending appeal. My attention is also invited to the application preferred by the petitioner/accused in the Appellate Court in English which was noted as Exh.No.14 in the pending appeal when adjournment was sought on the ground that previous Advocate Mr.Mohod was unable to appear. Learned Advocate for the respondent/complainant contended that the petitioner/accused is not a layman. He is English knowing person. He has also engaged services of battery of lawyers to prosecute the appeal. The learned Advocate for the respondent/complainant also contended that, considering the nature of the case as Summary Criminal Case as also statutory presumptions in favour of the complainant arising from admission by the accused that he had issued cheque in question it was open for the accused to lead evidence to rebut the statutory presumptions and he had availed of the opportunity in the trial Court to lead evidence by way of rebuttal. It is further submitted that he cannot now be allowed to invent a new story with the help of his Advocate so as to fill up the lacuna or to defeat the case of the complainant. It is contended that perusal of copy of the roznama would show that the application in respect of which the impugned order was passed was filed on 4.12.2009 when Advocate Ms Janpatkar had appeared for the petitioner/accused in the pending appeal only once on 1.1.2009. It is also contended that the application u/s.391 of the Code of Criminal Procedure in the Sessions Court was nothing but an attempt to prolong hearing of the appeal by trying to fill up the lacunas in the evidence led by the petitioner/accused in the trial Court in a Summary Criminal Case. It is further submitted that there was no illegality in the impugned order nor it can be said that the Appellate Court has exceeded its jurisdiction by rejecting the application.

15. With reference to the ruling in the case of Zahira Habibulla H. Sheikh and another (cited supra), it is submitted that the Hon'ble Apex Court had considered the provisions of Section 391 of Code of Criminal Procedure and noted that the need to give finalty to trial in Criminal proceedings is paramount as otherwise prejudice is caused to the accused persons and in fact it would be a negation of the fundamental rule of law to make the accused to undergo trial once over which has the effect of derailing system of justice. It is also noted in Para 32 that the necessity and need for additional evidence has to be determined in the context of the need for a just decision and it cannot be used for filling up a lacuna. Thus, if the appellate Court feels that there is necessity to act in terms of Section 391 as an exception to the ordinary rule, then it can exercise the power. In the case of Zahira Habibulla H. Sheikh (cited supra), the Apex Court did consider the affidavits of certain witnesses alleging threat during the trial. Therefore, the power u/s. 391 was felt necessary. Even the trial was directed to be conducted outside the state. The Apex Court directed for re-trial and even trial was directed to be conducted out of the State so that unhealthy atmosphere which lead to failure or miscarriage of justice is not repeated. It is contended by the learned Advocate that , in the facts and circumstances of the present case, considering the conduct of the petitioner/accused throughout the trial and during pendency of the appeal, the learned Appellate Judge has rightly exercised the discretion to reject the application.

16. It is further submitted that, in the case of Mamata Devi w/o. Prafullakumar Bhansli .vs. Vijaykumar Mamraj Agrawal reported in 2007(6) Mh.L.J. 809, in identical prosecution u/s. 138 of the Negotiable Instruments Act, this Court has held that no party shall be entitled to produce additional evidence in order to fill up the lacuna. It is observed thus :

" What Section 391 of Criminal Procedure Code says is that if the Appellate Court thinks such evidence to be necessary, it shall take it itself or cause itself to be taken by the Magistrate. "

It is further observed as under :

" Incidentally, section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the power being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finalty of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice.

17. In Abdul Latif and Ors. vs. State of Uttar Pradesh reported in AIR 1978 SC 472, the Apex Court refused to interfere under Article 136 of the Constitution of India and held that the finding of the High Court that the evidence of any witness is not necessary for a just decision of the case is a finding of fact and unless there is some substantial error in the judgment of the High Court, the Supreme Court would not interfere. Thus, in the facts and circumstances of the case and also looking into the nature of controversy between the parties, I must conclude that, after going through the affidavits on record as also the copies of documents relied upon, there is no substantial error of judgment in the impugned order since the learned Appellate Judge has already considered transcription of video-graphed CD as also viewed the video-graphed CD. The learned Judge is expected to decide the pending appeal strictly on merits without being influenced by the observations made herein.

In view of the observations, no interference is called for in the impugned order. Hence, the petition is dismissed. No order as to costs.

Petition dismissed.