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Application for filing additional documents in criminal cases: A power not to be used by the courts to fill up the gap(s)

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRREV No.41/2018 & IA No.1/2018

Date of order: 17.10.2018

Davinder Singh

Vs.

Kiran Pargal

Coram:Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearance:
For the petitioner(s) : Mr. A. S. Khera, Advocate.
For the respondent(s) : Mr. Vishal Kapoor, Advocate.

1. Contentions raised by the petitioner is that the respondent-Kiran Pargul, who happened to be old friend of petitioner, misused one of the blank cheques of the petitioner lying with him as trust against the payments of chit fund committees in raising a false and frivolous litigation against him in the form of a criminal complaint under section 138 N.I. Act by filling up an enormous amount of Rs. 6,00,000/- (Six Lac) in the same. The petitioner was not liable to pay any such amount to the respondent. The petitioner contested the same but he has been convicted by the learned Sub-Judge, Judicial Magistrate 1st Class Batote, vide his order dated 16.12.2013 in the complaint filed by the respondent.

2. The petitioner being aggrieved of the said order of conviction filed an appeal before the Sessions Judge Ramban, which is pending disposal. It is stated in the petition that during the course of arguments before the trial Court, two major aspects improperly attended during recording of evidence before the trial court were observed and accordingly the petitioner preferred to avail his legal right to fair trial by way of additional evidence and had filed an application under section 428 Cr.P.C. for recording of additional evidence before the Appellate Court to which the respondents also filed objections The appellate Court rejected the said application of the petitioner and passed order dated 20- 07-2018.

3. Through the medium of present revision petition, petitioner seeks revision of the said order on the grounds that the impugned order is bad in the eyes of law and is against the facts. Moreover, it is submitted that the said order is arbitrary and is based on surmises and conjectures and has been passed without taking into consideration the arguments as well as the written arguments tendered by the parties is full of whim and caprice and is bad in eyes of law.

4. Counsel for the petitioner further submits that during the cross-

examination of the complainant-respondent, he had produced his accounts/bahi khata which is not admissible as an evidence and for the purpose of corroborating the same, he requested the counsel for complainant to produce the relevant documents of income tax returns and to which the complainant had refused; the then counsel of the petitioner had not further cross-examined the complainant as non- production of such document draws adverse inference against the complainant, but had the complainant been further cross-examined and name of his income-tax Advocate been asked to him and the relevant documents of income tax return of the complainant/ respondent been called for, the same would had disclosed the truthfulness of the matter in the absence of any entry showing any such alleged debt, the Appellate Court below has not given any reasoning as to why the same cannot be called. The only objection referred to by the Appellate Court in this matter is that the transactions were below 20,000/- and as such no entry was required to be made in the balance sheet or the documents concerning the income tax returns.
5. It is further contended that the stand of the respondent is not tenderable because the Balance sheet or the income tax return does reflect the overall position of debt and credit in it and not every mini transaction, the overall debt alleged to be dischargeable on the part of the petitioner is stated to be 6 lac and the balance sheet or the documents of income tax return were supposed to be filed. Petitioner has taken a stand before the trial Court that he had given 20 blank signed cheques to the complainant/ respondent during committee transactions and he had misused one of the same and during the examination of witnesses, it is reflected that the petitioner had given cheque after settlement of the accounts and which are contrary to each other and in order to settle this issue it was vital to send the said cheque to the FSL for determination of age of writing of the cheque body and the signatures of the petitioner over the same and which is of considerable difference, the Appellate Court has not given consideration to this fact of the matter at all and has simply stated that the signatures upon the cheque are that of the petitioner and he is admittedly to have given some money (not the cheque amount) to the respondent and thus there is no need to send the same for Forensic examination.

6. Hence, the petitioner submits that the impugned Order dated 20.07.2018 passed by the Appellate Court of Sessions Judge Ramban may kindly be set aside and petitioner be allowed to produce additional evidence.

7. I have heard counsel for parties and all documents annexed and produced during argument. From perusal of same, it appears that petitioner has been convicted for offence under section 138 of N.I. Act by JMIC Batote on 16.12.2013, on account of bouncing/dishonor of cheque no.544914 dated 01.09.2008 for Rs. Six lakh, given in favour of respondent herein. JMIC has passed sentence of simple imprisonment of one year and compensation of Rs.6 lakh along with interest @ 15%PA from the date of institution of complaint. Petitioner has also been sentenced of fine of Rs.5000/- and in default imprisonment of six months.

8. Petitioner has filed appeal before Court below; during pendency of said appeal, petitioner also filed an application for producing additional evidence in terms of section 428 Cr.P.C; in application it has been stated that during trial complainant produced account/bhai-khata, which is not admissible in evidence; that for corroborating purpose he asked complainant, as to whether he can produce income tax returns, upon which he stated that same is lying with his advocate, so no further question was asked; that had complainant told the name of Advocate with whom record was lying, the accused would have called record of income tax for clarification. That during trial he moved an application for sending the cheque to FSL for handwriting analysis, but same was rejected by court below. That as per complainant, accused gave pre-filled cheque to complainant and stand of accused was that he gave 20 numbers of cheques to complainant and out of those twenty cheques, one cheque has been misused. That cheque bears only his signature and rest of body has been filled-up by complainant. So age of that writing was required to be verified by FSL.

9. After inviting objections, application was dismissed by virtue of impugned order, on the ground that accused has admitted factum of issuance of signed cheque, so there is no need of FSL examination and income tax returns are not essential for just decision of case.

10. Section 428 of Cr.P.C. reads as under:-

“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 [Judicial Magistrate] or, when the Appellate Court is the High Court, by a Court of Session or a [Judicial 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) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken; but such evidence shall not be taken in the presence of jurors.
(4) The taking of evidence under this Section shall be subject to the provisions of Chapter XXV, as if it were an inquiry.”
11. From bare perusal of this section, it is evident that additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power has to be exercised sparingly and only in exceptional cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play and justice. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. Section 428 of Cr.P.C. forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. At the same time power under this section cannot be exercised to fill up the lacuna.

12. From the perusal of this provision, it is clear that in order to lead further evidence, it is essential for the appellant to prove that the additional evidence is necessary for the disposal of the appeal. After going through all facts of the case, I am of considered opinion that application of petitioner has rightly been dismissed. Because firstly he has admitted his signature on cheque in question and secondly, issuance of the same in favour of the complainant.

13. Section 139 of N.I Act reads as under:-

“139. Presumption in favour of holder:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”
14. The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability because both sections 138 and 139 require that the Court “shall presume” the liability of the drawer of the cheques for the amounts for which the cheques are drawn.

15. There is no law which prescribes that in the negotiable instrument, the entire body of the instrument shall be written only by the marker or drawer of the instrument. Once the execution is admitted, it shall be taken that the cheque was issued by the accused in favour of the complainant towards the discharge of the liability even in a case where the cheque was filled up by some other person. There is a presumption, in case a signed cheque is delivered to the payee, that the cheque so issued by the drawer in favour of the payee is only towards the discharge of his subsisting liability. By issuing a signed cheque, it gives authority to the holder of the cheque and/or instrument to fill in the particulars and make the incomplete cheque/instrument as complete. Taking into consideration the aforesaid observation, therefore, if an application is made for sending the document to the Handwriting Expert particularly in an appeal, the judge has to consider the said application taking into consideration the facts of each case and decide as to whether it is a fit case for sending the said document to the Handwriting Expert. There should not be a tendency on the part of the accused/appellant to protract the proceeding as much as possible. Appellant herein already filed an application for sending the cheque to FSL before trial Court (JMIC ), but same was dismissed on 31.11.2011; this order was not challenged before higher Forum. So on same ground similar application would not be maintainable in appellate Court. Further once appellant has admitted his signature on cheque, there was no need to send the cheque to FSL for examination. So far as question of producing income returns is concerned, that has no bearing effects on the case.

16. In view of above, this petition is dismissed.

( Sanjay Kumar Gupta ) Judge Jammu:

17.10.2018

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