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No additional evidence required under Section 391 CrPC : MP High Court

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Recently, MP High Court observed that When evidence has not been led before the trial court, the question of leading additional evidence under section 391 CrPC does not arise.

The petitioner has filed this Misc. Criminal Case under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) being aggrieved with the order dated 09.03.2021 passed in Criminal Appeal (Regular) No.58/2019 by the Second Additional Judge to the Court of First Additional Sessions Judge, Betul; whereby the learned Additional Sessions Judge has rejected the application filed by the petitioner under Section 91 of the Code.

According to the petitioner, the complainant has filed a private complaint under section 200 of the Code against the petitioner/accused for the offence punishable under section 138 of Negotiable Instruments Act (hereinafter referred to as “the Act”) contending that there was an agreement to sale of land between the parties and in this regard as an advance payment the petitioner/accused has issued a cheque of Rs.20,00,000/- dated 5.10.2013 of State Bank of India, Raipur in favour of respondent no.1/complainant, which was dishonoured on presentation.

Section 391 of the Code empowers the appellate Court to take further evidence or direct it to be taken. The key words under section 391 of the Code is that, the appellate Court, if it thinks additional evidence to be necessary. The word “necessary” used in section 391(1) is to mean necessary for deciding the appeal.

The appeal has been filed by the accused, who have been convicted. The scope and ambit of section 391 of the Code before the Apex Court dealt in Rajeshwar Prasad Mishra Vs.State of West Bengal, AIR 1965 SC 1887and it was held that wide discretion is conferred on appellate Courts and the additional evidence may be necessary for a variety of reasons. In Ram Babu and another Vs. State of Maharashtra, 2001 (4) SCC 759 it was held that there is a very wide discretion in the matter of additional evidence in terms of section 391 of the Code.

Therefore, under section 391 of the Code appellate Court may permit for additional evidence.

In the case in hand, there is nothing to show that the petitioner/accused had adduced any evidence before the trial court. In view of the said decision, the question of leading additional evidence under section 391 of the Code would arise only when some evidence is adduced by the parties seeking evidence.

From the perusal of section 391 of the Code also, it is clear that it provides the leading of additional evidence only. When evidence has not been led before the trial court, the question of leading additional evidence under section 391 of Code does not arise.

In Court’s view, the appellate Court was justified in dismissing the application when the petitioner himself did not request for producing additional evidence and in absence of such request, summoning of a document is a futile exercise.

Apart from that, in the present case, there is a dispute with regard to the cheque amount of Rs.20,00,000/-, which was dishonoured. In short, it can be said that the petitioner wants to call the aforesaid income tax returns of complainant to determine the source of income of complainant. It is also necessary to this Court to think about this fact that if the complainant shall not file the proof of his source of income or income tax return, then what would be its effects on the case of complainant and what can be presumed by the Court in this regard.

It is held by a Gwalior Bench of this Court in Criminal Revision No.5263/2018 (Smt. Ragini Gupta Vs. Piyush Dutt Sharma) that mere non-filing of income tax return, would not automatically dislodge the source of income of the complainant. Non-payment of income tax is a matter between the revenue and assessee. No adverse inference can be drawn in this regard only because of absence of income tax return.

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