Case Note & Summary
The petitioner, original complainant, challenged the order dated 24.12.2002 passed by the learned Additional Sessions Judge, Jalgaon in Criminal Appeal No.40/1998, whereby the appellate court permitted the appellant (original accused) to adduce additional evidence under Section 391 of the Code of Criminal Procedure, 1973. The dispute arose from a cheque dishonour case where the accused alleged that he had borrowed money from the complainant, a money lender, and had repaid the amount with interest. The accused claimed that the complainant used to take cheques as security and also got executed a sale deed from the accused, which the accused offered to tender in evidence at the appellate stage. The complainant objected on the grounds that the accused cannot be allowed to fill up the lacuna in evidence, that additional evidence would protract the trial, and that the accused had not availed the opportunity to lead defence evidence despite his statement under Section 313 CrPC being recorded. The High Court, after hearing the parties, found that the appellate court had passed a detailed and reasoned order considering the allegations. The High Court held that the appellate court's discretion under Section 391 CrPC to permit additional evidence was not illegal or perverse, and dismissed the writ petition.
Headnote
A) Criminal Procedure - Additional Evidence in Appeal - Section 391 CrPC - Discretion of Appellate Court - The appellate court allowed the accused to adduce additional evidence to prove repayment of loan and execution of sale deed, which was objected by the complainant on grounds of filling lacuna and protraction of trial - The High Court held that the appellate court's reasoned order was within its discretion and not illegal or perverse - Held that the appellate court can permit additional evidence if it is necessary for just decision of the case (Paras 2-4).
Issue of Consideration
Whether the appellate court's order permitting additional evidence under Section 391 of the Code of Criminal Procedure, 1973 was justified and not illegal or perverse.
Final Decision
The High Court dismissed the criminal writ petition, upholding the order of the Additional Sessions Judge, Jalgaon dated 24.12.2002 permitting additional evidence under Section 391 CrPC.
Law Points
- Section 391 CrPC
- Additional evidence in appeal
- Discretion of appellate court
- Filling lacuna
- Protraction of trial
Case Details
2013 LawText (BOM) (06) 1
Criminal Writ Petition No. 40 of 2003
Mr. S.S.Dixit h/f Mr. V J Dixit, Mr. P.P.More, Mr. A.S.Pawar h/f Mr. K.C. Sant adv
Pratap Gabaji Patil, State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging an order of the appellate court permitting additional evidence under Section 391 CrPC.
Remedy Sought
The petitioner (original complainant) sought to quash the order dated 24.12.2002 passed by the Additional Sessions Judge, Jalgaon allowing the accused to adduce additional evidence.
Filing Reason
The petitioner objected to the appellate court's order permitting additional evidence on grounds that it would fill lacuna and protract the trial.
Previous Decisions
The trial court had convicted the accused? Not mentioned. The appellate court allowed additional evidence under Section 391 CrPC.
Issues
Whether the appellate court's order permitting additional evidence under Section 391 CrPC was illegal or perverse.
Whether the accused can be allowed to adduce additional evidence at the appellate stage despite not leading defence evidence before the trial court.
Submissions/Arguments
Petitioner argued that the accused cannot be allowed to fill up the lacuna in evidence and that additional evidence would protract the trial.
Petitioner argued that the accused had not availed the opportunity to lead defence evidence despite his statement under Section 313 CrPC being recorded.
Respondent argued that the appellate court's order was reasoned and within its discretion under Section 391 CrPC.
Ratio Decidendi
The appellate court has discretion under Section 391 CrPC to permit additional evidence if it is necessary for a just decision of the case. The order was reasoned and not illegal or perverse.
Judgment Excerpts
petitioner has questioned the order dated 24.12.2002 passed by learned Additional Sessions Judge, Jalgaon in Criminal Appeal No.40/1998 whereby passing an order below Exh.19 in pending Criminal Appeal No.40/1998, learned Additional Sessions Judge permitted the appellant in the case to adduce additional evidence exercising his discretion under section 391 of the Code of Criminal Procedure
It appears that learned Additional Sessions Judge had passed a detailed and reasoned order and considering the allegations levelled against the respondentcomplainant on the ground that respondentcomplainant is a money lender.
Procedural History
The trial court convicted the accused? Not mentioned. The accused filed Criminal Appeal No.40/1998 before the Additional Sessions Judge, Jalgaon. During the appeal, the accused filed an application (Exh.19) under Section 391 CrPC to adduce additional evidence. The appellate court allowed the application on 24.12.2002. The complainant filed Criminal Writ Petition No.40 of 2003 before the High Court challenging that order. The High Court dismissed the writ petition on 12.06.2013.
Acts & Sections
- Code of Criminal Procedure, 1973: 391, 313
