Accused in a Section 138 NI Act cheque dishonour case sought additional evidence under Section 391 Cr.P.C. in appeal after earlier rejection of a Section 243(2) application. Court held the request merely overcame an order already final and dismissed the petition.
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NC: 2024:KHC:1040 CRL.P No. 2408 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN CRIMINAL PETITION NO. 2408 OF 2023
BETWEEN:
SRI. SRIHARI ACHARYA N S/O LATE VITHOBHACHARYA, AGED ABOUT 44 YEARS, R/O NO.213, 4th MAIN ROAD, CHAMARAJPET, BENGALURU - 560 018.
…PETITIONER
(BY SRI. HARISH KUMAR M S., ADVOCATE)
AND:
Digitally signed by VEDAVATHI A K Location: High Court of Karnataka
SRI. VIJAYA SAVANUR S. K. S/O LATE S. KRISHNA RAO, AGED ABOUT 44 YEARS, R/O NO.109, 1st FLOOR, 6th CROSS, 5th MAIN, RK LAYOUT, PADMANABHA NAGAR, BENGALURU - 560 070.
…RESPONDENT
(BY SRI. DILIP KUMAR I S., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-66) AT BENGALURU IN CRL.A.NO.183/2022 DATED 30.01.2023.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition filed by the petitioner/accused under section 482 of Cr.P.C., for quashing the order dated 30.01.2023 in Crl.A.No.183/2022 dated 30.01.2023 on the file of LXV Addl. City Civil and Sessions Judge, Bengaluru, for having rejected the application filed by the petitioner under section 391 of Cr.P.C.
Subsequently, he has filed the petition before this court under Section 482 of Cr.P.C., in Crl.P.No.9344/2021. During the pendency of the said petition under Section 482 of Cr.P.C., the trial court disposed of the matter by convicting the petitioner/accused. Subsequently, the petitioner approached the Sessions Judge for appeal by filing appeal under section 374 (3) of Cr.P.C. After filing the appeal, the petitioner once again filed application under section 391 of Cr.P.C., for leading additional evidence before the appellate court, which came to be dismissed vide impugned judgment, which is under challenge.
challenging the same before the High Court, the main matter itself was disposed of. Therefore, those witnesses are necessary for the petitioner to examine before the court, to support his contention. Therefore, he must be allowed to plead additional evidence to examine those witnesses. Hence, prayed for allowing the petition.
admitting the liability. Therefore, question of leading additional evidence to prove some other facts is not required for the proceedings under section 138 of NI Act. Therefore, prayed for dismissing the petition.
Once again, the petitioner moved the application under section 391 of Cr.P.C., for leading the additional evidence, which is under challenge. Considering the facts, the rejection of the application under section 243 (2) of Cr.P.C. has been attained finality, by rejection of the revision petition by the First Appellate Court/Revisional Court and withdrawing the Crl.P.No.9344/2021 before this Court, where the order of rejection of leading additional evidence has been attained finality. Subsequently, as per the contention of the respondent counsel and it is not disputed by the Petitioner counsel, after rejection of the revision petition, the petitioner being the accused, filed another application under Section 311 Cr.P.C., and lead further evidence of the petitioner and he has got some more documents. Thereafter, the trial court
disposed the matter by convicting the petitioner. Once the application for leading additional avoidance under section 243 (2) of Cr.P.C. has been attained finality. Once again, the question of allowing the petitioner to lead additional evidence in the appeal as provided under section 391 of Cr.P.C., does not arises. It is nothing but overcoming the earlier order passed by the court which was already attained the finality. Therefore, the question of allowing the petitioner to lead additional evidence under section
311 Cr.P.C, in the appellate court cannot be allowed, as the petitioner already lead additional evidence after 10 months of the rejection of the revision petition. Such being the case, the question of once again leading additional evidence under Section 391 of Cr.P.C., is nothing but revoking the order passed by the Trial Court and upheld by the Appellate Court, under Section 243 (2) of Cr.P.C., Therefore, without touching the merit of the case, whether the petitioner admitted in the cross examination of the complainant issuance of cheque singing the cheque, admitting the liability cannot be dealt with this court as it may prejudice the case of the petitioner as well the complainant, When the matter is pending in the Appellate Court. Such being the case, I am of the view petition is devoid of merits.
Accordingly, this petition is dismissed .
Sd/JUDGE
AKV List No.: 1 Sl No.: 38 CT:SK
1 issue framed by the court
Can additional evidence be led under Section 391 Cr.P.C. in appeal after a Section 243(2) application was rejected and attained finality?
7 provisions across 3 enactments
Srihari Acharya N
Vijaya Savanur S. K.
K.Natarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
