RAMESH KUMAR DADSENA Vs. VIDYASAGAR RATRE

JUDGEMENT

(1.) This petition has been filed by applicant invoking revisional jurisdiction of this Court under Sec. 397/401 of the Criminal Procedure Code, 1973 (henceforth 'CrPC') for setting aside of the order dtd. 13/3/2024 (Annexure A-1) passed by the learned 1st Additional Sessions Judge, Saraipali, District Mahasamund (CG) in Criminal Complaint Case No.345/2019 whereby the application filed by applicant under Sec. 391 Cr.P.C. has been rejected.

(2.) Briefly stated facts of case are that complainant/non-applicant had filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881 (for short 'the Act of 1881') alleging dishonour of cheque issued by applicant in favour of non- applicant. Said complaint came to be registered as Criminal Complaint Case No.345/2019 and after due trial, it was ensued in judgment dtd. 27/2/2013 passed by the learned Judicial Magistrate First Class, Basna convicting and sentencing applicant for the offence punishable under Sec. 138 of the Act of 1881. Applicant preferred an appeal before the appellate Court challenging said judgment of conviction and order of sentence. During pendency of said appeal, applicant preferred an application under Sec. 391 CrPC pleading that on the basis of complaint made by nonapplicant, police of police station Basna inquired into the matter and recorded statement of witnesses in which they have stated about return of entire amount to complainant, copies of those statements have been obtained by applicant under the Right to Information Act, 2005 and also brought the same to the notice of his counsel but for some unknown reasons, said documents could not be produced before trial Court. Statements of said witnesses are material in the present case and therefore, permission was sought to produce said documents as additional evidence. Non-applicant filed reply to said application denying the averments made therein. Appellate Court, after hearing the parties in the matter, rejected said application vide impugned order holding that applicant failed to offer any cogent explanation for not submitting said documents at an early stage of trial despite having sufficient opportunity.

(3.) Learned counsel for applicant submits that learned appellate Court committed error in rejecting application filed by applicant under Sec. 391 CrPC. He submits that Sec. 391 of CrPC clearly envisages that appellate Court, if thinks, additional evidence is necessary, shall record the same and necessary document may be taken on record, but the appellate Court without going into the relevancy of the documents rejected the application. He submits that the documents sought to be produced as additional evidence would show that the amount which is alleged to be payable to the complainant, has already been paid by applicant and there was no amount due on the date of filing of application under Sec. 138 of the Act of 1881. Since the complainant denied having received any amount, the documents which were sought to be brought on record as additional evidence were necessary for disposal of appeal. He next contended that no prejudice is going to be caused to the respondent if the said documents are allowed to be produced as additional evidence, yet the appellate Court has dismissed the application.