Case Note & Summary
The petitioners, original accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, were convicted by the trial court and sentenced to simple imprisonment for one month and directed to pay compensation of rupees eight lakhs to the respondent. They appealed against the conviction before the Additional Sessions Judge, Nagpur, in Criminal Appeal No. 08 of 2009. During the appeal, the petitioners filed an application under Section 391 of the Code of Criminal Procedure, 1973 (CrPC) seeking permission to lead additional evidence, specifically the dissolution deed of the partnership firm (petitioner No.1) dated 31st March 2004 and the Form E submitted to the Registrar of Firms on 7th May 2004, to show that the firm was dissolved before the cheque was dishonoured. The learned Additional Sessions Judge rejected the application by order dated 1st September 2015, leading to the present writ petition. The High Court held that the appellate court has discretion under Section 391 CrPC to permit additional evidence if it is necessary for a just decision. The court found that the dissolution of the firm is a relevant fact that could affect the liability of the partners under Section 138 of the NI Act. The impugned order was set aside, and the application under Section 391 CrPC was allowed, directing the appellate court to permit the petitioners to lead additional evidence.
Headnote
A) Criminal Procedure Code - Section 391 - Additional Evidence in Appeal - Appellate court has discretion to permit additional evidence if it is necessary for a just decision of the case - The rejection of application without considering the relevance of the proposed evidence is improper - Held that the appellate court ought to have allowed the application to bring on record the dissolution deed and Form E to determine the liability of the partners (Paras 2-5).
B) Negotiable Instruments Act - Section 138 - Liability of Partners - Dissolution of Firm - The fact of dissolution of a partnership firm prior to the dishonour of cheque is a material fact that can affect the liability of the partners - The appellate court should have permitted additional evidence to establish the date of dissolution - Held that the impugned order is set aside and the application under Section 391 CrPC is allowed (Paras 3-5).
Issue of Consideration
Whether the appellate court erred in rejecting the application under Section 391 CrPC for leading additional evidence regarding dissolution of the partnership firm, which is relevant to the liability of the accused under Section 138 of the Negotiable Instruments Act.
Final Decision
The impugned order dated 1st September 2015 passed by the Additional Sessions Judge, Nagpur in Criminal Appeal No. 08 of 2009 is set aside. The application filed by the petitioners under Section 391 of the Code of Criminal Procedure is allowed. The appellate court is directed to permit the petitioners to lead additional evidence in accordance with law.
Law Points
- Section 391 CrPC allows appellate court to take additional evidence if necessary for just decision
- dissolution of partnership firm is relevant fact for determining liability under Section 138 NI Act
Case Details
2017 LawText (BOM) (09) 239
Criminal Writ Petition No. 351 of 2016
Shri G.L. Bajaj for the petitioners, Shri A.B. Deshpande h/f Shri M.D. Samel for the respondent
M/s Gandhi Sales (A Partnership Firm now dissolved) through its erstwhile partner Pankaj Gandhi, Pankaj s/o Rasiklal Gandhi, Heena w/o Pankaj Gandhi
Prakash M. Khandelwal, Proprietor of M/s Gulabchand Badrinarayan
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal writ petition challenging the rejection of an application under Section 391 CrPC for leading additional evidence in an appeal against conviction under Section 138 of the Negotiable Instruments Act.
Remedy Sought
The petitioners sought to set aside the impugned order and allow their application under Section 391 CrPC to lead additional evidence regarding dissolution of the partnership firm.
Filing Reason
The petitioners' application under Section 391 CrPC was rejected by the appellate court, and they challenged that rejection.
Previous Decisions
The trial court convicted the petitioners under Section 138 NI Act and sentenced them to SI for one month and compensation of Rs. 8 lakhs. The appeal against that conviction was pending before the Additional Sessions Judge.
Issues
Whether the appellate court erred in rejecting the application under Section 391 CrPC for additional evidence.
Whether the dissolution of the partnership firm is a relevant fact for determining liability under Section 138 NI Act.
Submissions/Arguments
The petitioners argued that the partnership firm was dissolved on 31st March 2004, and Form E was submitted on 7th May 2004, which is relevant to show that the firm was not in existence at the time of dishonour of the cheque.
The respondent opposed the application, but the judgment does not detail the respondent's arguments.
Ratio Decidendi
The appellate court has discretion under Section 391 CrPC to permit additional evidence if it is necessary for a just decision. The dissolution of a partnership firm is a material fact that can affect the liability of partners under Section 138 NI Act, and therefore, the application for additional evidence should have been allowed.
Judgment Excerpts
This petition challenges impugned order passed by the learned Additional Sessions Judge, Nagpur in Criminal Appeal No. 08 of 2009 on dated 1st September, 2015, thereby rejecting application filed by the petitioners under Section 391 of the Code of Criminal Procedure praying for directions to the trial Court to record additional evidence.
The petitioners are original accused in Criminal Complaint Case No. 4800 of 2005 initiated by respondent under Section 138 of Negotiable Instruments Act.
Procedural History
The petitioners were convicted by the trial court under Section 138 NI Act. They filed Criminal Appeal No. 08 of 2009 before the Additional Sessions Judge, Nagpur. During the appeal, they filed an application under Section 391 CrPC for additional evidence, which was rejected on 1st September 2015. The petitioners then filed the present criminal writ petition challenging that rejection.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): Section 391
- Negotiable Instruments Act, 1881: Section 138
- Indian Partnership Act, 1932: Section 63
- Maharashtra Partnership Rules, 1989: Rule 4
