High Court of Punjab & Haryana dismissed a revision petition challenging the dismissal of an application for additional evidence pending during an appeal against acquittal in a cheque dishonour case.
Revision petition dismissed; order dismissing application under Section 391, Cr.P.C. upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRR No.256 of 2012
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IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH
CRR No.256 of 2012 Date of decision:1.2.2012
Satpal Singh Malhotra
...Petitioner
Versus
Gulshan Kumar
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Abhishek Sethi, Advocate, for the petitioner.
NARESH KUMAR SANGHI, J.
The present revision petition has been filed by the petitioner against the judgment dated 1.11.2011 passed by the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, whereby the application filed by the petitioner under Section 391, Cr. P.C. to lead additional evidence in first appeal was dismissed.
The brief facts of the case are that the petitioner had filed a criminal complaint for the offences punishable under Sections 138 of the Negotiable Instruments Act, 1881, (for short `the Act') and Section 420 of the Indian Penal Code before the learned Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, however, the respondent/accused was summoned to face trial for the offence punishable under Section 138 of the Act. After trial, the learned trial Court dismissed the complaint and acquitted the accused on the ground that the complainant had failed to establish the guilty of the accused for the commission of offence punishable under Section 138
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read with Section 142 of the Act.
Not satisfied with the order of the acquittal, the complainant/petitioner filed a criminal appeal before learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, which is pending adjudication. During the pendency of the said appeal, the petitioner moved an application under Section 391, Cr. P.C. for leading additional evidence. The said application was dismissed by the learned lower appellate court vide order dated 1.11.2011, which is under challenge before this Court by way of a criminal revision.
Learned counsel for the petitioner submits that the complainant/petitioner is a retired police officer and after his retirement, he is working as money lender. Prior to the registration of his firm and getting a licence, the petitioner advanced a friendly loan of `1,55,000/- to the respondent in the presence of Gurmeet Singh son of Lehna Singh. In discharge of his liability, the accused/respondent issued a cheque dated 30.5.2007 for an amount of Rs.1,55,000/- drawn on Bank of India, Yamuna Nagar Branch. He further submits that the learned trial Court wrongly acquitted the respondent/accused and hence the appeal against acquittal was presented before the Court of Session, which is pending adjudication before the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri. He further submits that during pendency of the appeal, an application under Section 391, Cr. P.C. for producing Gurmeet Singh son of Lehna Singh as a witness, by way of additional evidence, was wrongly declined vide impugned order dated 1.11.2011. To buttress his submissions, reliance has been placed on the judgments
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rendered in Rajeswar Prasad Misra vs. State of W.B. And another, 1965 AIR (SC) 1887 and Iqbal Singh vs. Shamsher Singh Puri, 2011 (3) RCR (Crl.) 196.
I have heard the learned counsel for the petitioner and gone through the material available on record.
Perusal of the impugned order would reveal that the complainant had filed the complaint on 9.7.2007 but there was no averment in the whole complaint that the amount was paid by the complainant to Gulshan Kumar in the presence of Gurmeet Singh; in the preliminary evidence of complainant, there was no whisper that the payment was made in the presence of said Gurmeet Singh; after serving notice of accusation to respondent/accused, the complainant/petitioner again stepped into the witness box as CW1; but there was nothing with regard to the fact of receipt of the amount by the respondent in the presence of Gurmeet Singh and legal notice served upon the respondent by the complainant was also not containing the said fact.
Learned counsel for the petitioner has pointed out that during cross-examination of complainant, it has come that the complainant had given money to Gulshan Kumar in the presence of Sardar Gurmeet Singh. Once that fact has come on record in the cross-examination, then what is the necessity for the complainant to lead additional evidence could not be explained.
The authorities, mentioned above, are not applicable to the facts and circumstances of the case. There is no dispute with regard to the principles laid down by Hon'ble the Apex Court and this
CRR No.256 of 2012
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Court with regard to the leading of additional evidence.
Moving of an application under Section 391, Cr. P.C. when the appeal against acquittal is pending before the learned Additional Sessions Judge, appears to be an attempt to fill up lacuna in the prosecution case or the same was filed an intention to delay the disposal of the appeal. The fact that the alleged amount was paid in the presence of Sardar Gurmeet Singh is conspicuously missing from statutory notice issued by the complainant to the accused/respondent, complaint, preliminary evidence and affidavit submitted by the complainant in support of his evidence. The position explained here in above does not lead this Court to take a contrary view than that of the lower appellate Court. Therefore, findings no force in the present revision petition, the same is hereby dismissed.
(NARESH KUMAR SANGHI) JUDGE
31.1.2012 mks
1 issue framed by the court
Whether the revision petition seeking dismissal of the order dismissing an application for additional evidence under Section 391, Cr.P.C. should be allowed.
Satpal Singh Malhotra
Gulshan Kumar
NARESH KUMAR SANGHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
