JUDGMENT
A.S. Aguiar, J.
1. By this application, presumably under Section
482 of the Code of Criminal Procedure, 1973, the
applicant seeks to invoke the exercise of powers
vested in this Court Ex Debito Justitiae to prevent
apprehended abuse of the procedural law and
miscarriage of justice from taking place. The
apprehension arises allegedly on account of the order
passed by the Sessions Court, Bombay, rejecting
Miscellaneous Application No. 376 of 2000 under
Section 391 of the Code of Criminal Procedure, 1973.
The appellant sought to examine himself on oath in
order to enable him to discharge the burden to rebut
the presumption of law under Sections 138 and 139 of
the Negotiable Instruments Act. The said
Miscellaneous Application No. 376 of 2000 is filed in
Criminal Appeal No. 330 of 2001 from the order dated
26.11.2002 passed by the leaned Metropolitan
Magistrate, 28th Court, Esplanade, in C.C. No.
1173/S/95 convicting the Appellant – accused Yogendra
Bhagatram Sachdev under Section 138 of the Negotiable
Instruments Act and sentencing him to suffer rigorous
Imprisonment for one year and to pay a fine of Rs.
5,000/=, in default to suffer rigorous imprisonment
for three months with a further direction to the
accused to pay an amount of Rs. 1,00,00,000/= as
compensation to the complainant.
2. The appeal was filed and was admitted on
21.12.2001. At the stage when the appeal has become
ripe for hearing, the applicant-accused files the said
application under Section 391 of the Code of Criminal
Procedure, praying that the appellant be allowed to
lead cogent evidence which is on record by way of
documents, but not by of oral (SIC) and that the
said Court, that is to say, the Sessions Court either
take his evidence itself of direct it to be taken by
the learned Magistrate subject to Chapter XXIII, as if
it was an enquiry. The said application, as stated
above, has been rejected by judgment and order dated
21.11.2002 passed by the Additional Sessions Judge,
Greater Bombay.
3. To appreciate the issues in controversy, it is
necessary to give the brief facts of the case.
The applicant and respondent No. 2 were both
directors of Reliance Silicon, situated at Navi
Mumbai. Differences arose between the complainant and
the applicant-accused. An amicable settlement was
arrived at between the parties to the effect that the
complainant shall transfer his shares to the accused
and resigns from the company and, in consideration
therefore, he should be paid Rs. 50,00,000/= by the
accused. Pursuant to the said understanding, blank
share transfer application forms were signed by the
complainant and handed over to one Shri. Sanghvi, who
acted as intervener, and ten cheques of Rs.
5,00,000/= each were handed over by the accused to
Shri. Sanghavi, who handed over the said cheques to
the complainant as per the understanding. The
complainant, that is, respondent No. 2 deposited the
cheques with his bankers. However, the said cheques
were dishonoured. After compliance of necessary
formalities, namely, serving demand notice, etc., a
complaint came to be filed before the Court of the
learned Magistrate and numbered as Criminal Case No.
11/0/S/1998.
4. The contention of the applicant-accused is
that there was no consideration for the issue or
cheques and hence there was no legally enforceable
debt or liability entitling respondent No. 2 to encash
the cheques.
5. In support of his case, the complainant
examined himself as P.W. 1 and one bank officer Mr.
Manoj Anant Patil as P.W. 2 and the intervener friend
Shri. Sanghvi was examined as P.W. 3. The applicant
– accused did not adduce any evidence. He, however,
produced four documents which were taken on record by
consent and marked as Exhibits D-1 to D-4. These
letters were produced in order to show that the shares
of the company were in the custody of financial
institutions which had advanced financial assistance
to the company of which accused and the complainant
were directors.
6. It is pertinent to note that in his statement
recorded under Section 313 of the Code of Criminal
Procedure, 1973, the accused had accepted that he had
given ten cheques of Rs. 5,00,000/= each to Shri.
Sanghvi to be given to the complainant. At the end of
recording his statement under Section 313 of the Code
of Criminal Procedure, 1973 when he was asked whether
he wanted to lead any evidence by entering the witness
box, the Applicant declined the offer.
7. The defence of the applicant-accused is that
he was obliged to pay Rs. 50,00,000/= to the
complainant only on transfer of the shares of the
applicant in his name and since that transfer had not
taken place, he was not liable to pay the amount
stated in the cheques and that, since the shares had
not been transferred in his name, he had instructed
his banker not to make payment.
8. By judgment and order dated 26.11.2001, the
applicant was convicted and sentenced by the trial
Court. The same is impugned by the applicant filing
Criminal Appeal No. 330 of 2001 which was admitted on
21.12.2001. On 3.9.2002, the Criminal Application No.
376 of 2002 to alow the Applicant to examine himself
and leave evidence, came to be rejected by the Sessions
Court by the impugned order dated 21.11.2002. It is
this order which is the subject-matter of challenge in
the present criminal application.
9. Learned Counsel Shri. Desai appearing on
behalf of the applicant/accused has pointed out that
the learned Additional Sessions Judge has declined to
exercise power under Section 391 of the Code of
Criminal Procedure, 1973 on two grounds; firstly, that
there is no change in the law regarding discharge of
burden of proof under Section 139 of the Negotiable
Instruments Act after the judgment of conviction, and
secondly, that if such application were allowed, it
would open the floodgates leading to a spate of
applications seeking to avoid conviction by applying
to the Appeal Court to allow the accused to lead
evidence in the appeal. It is contended that the
learned Judge in his order dated 21.11.2002 has not
determined the question whether additional evidence
was necessary as required under Section 397 of the
Code of Criminal Procedure, 1973 for determination of
truth and to subserve the ends of justice.
10. It is submitted that the scope and ambit of
Section 391 of the Code of Criminal Procedure, 1973
has been enunciated in several decisions of various
High Courts as well as the Supreme Court. A Division
Bench of the Allahabad High Court in the case of State
v. Jaiprakash, ; while
dealing with the erstwhile provisions of Section 428
of the Code of Criminal Procedure, 1973 has observed
as follows:
“2. The section forms an exception to the
general rule that an appeal must be decided on
the evidence which was before the trial Court.
Its manifest object is the prevention
of a guilty man’s escape through same careless
or ignorant proceedings of a trial Court or
the vindication of an innocent person wrongly
accused where the trial Court through some
carelessness or ignorance has omitted to
record the evidence of the circumstances
essential to the elucidation of the truth.”
11. A Constitution Bench of the Supreme Court in
the case of Ulkha Kolhe v. State, A.I.R. 1963 S.C.
1831; while dealing with the erstwhile provisions
observed as follows:
“11. If the Sessions Judge thought that in
the interest of justice and for a just and
proper decision of the case it was necessary
that additional evidence should be brought on
the record he should have, instead of
directing a retiral and reopening the entire
proceeding, resorted to the procedure
prescribed by Section 428(1) of the Code of
Criminal Procedure. There is no doubt that if
the ends of justice require, the appellant
Court should exercise its power under the said
section.”
“12. An opportunity to lead this evidence
may be given under Section 428, not with a view to
fill up lacunae in the evidence but to
regularize the trial of the accused and to
ensure that the case is establishment against
him beyond reasonable doubt, more so when for
the purpose of convicting the accused reliance
is sought to be placed upon a presumption
arising from the report of a Chemical
Examiner, who is not examined before the
Court, and which substantially raises a
presumption of guilt.”
12. It is submitted that the aforesaid
observations of the Supreme Court are extremely
relevant in the present context since, in this case,
reliance is placed on the presumption under Section
139 of the Negotiable Instruments Act. However, since
the prosecution is relying on this presumption, the
accused is the best person to discharge the burden of
proof under Section 139 of the Negotiable Instruments
Act to rebut this presumption, since he would have
personal knowledge of the transactions with the
complainant. It is contended that an opportunity
must, therefore, be given to the accused to lead his
evidence to ensure that he discharges the burden of
proof cast on him specially since reliance is sought
to be placed on this presumption for convicting the
accused under Section 139 of the Negotiable
Instruments Act.
13. Reliance is also placed on the decision of the
Supreme court in the case of Rambhau v. State, , which sets out the scope of Section
391 of the Code of Criminal Procedure, 1973, as
follows:
“2. A word of caution, however, ought to
be introduced for guidance, to wit; that this
additional evidence cannot and ought not to be
received in such a way as to cause any
prejudice to the accused. This Court was
candid enough to record, however, that it is
the concept of justice which ought to prevail
and in the event the same dictates exercise of
power as conferred by the Code, there ought
not to be any hesitation in that regard.
3. Be it noted that no set of principles
can be set forth for such an exercise of power
under Section 391 since the same is dependant
upon the fact-situation of the matter and
having due regard to the concept of fairplay
and justice, well-being of the society.
Incidentally, Section 391 forms an
exception to the general rule that an Appeal
must be decided on the evidence which was
before the Trial Court and the powers being an
exception shall always have to be exercised
with caution and circumspection so as to meet
the ends of justice. It is not to fill up the
lacuna but to subserve the ends of justice.
Needless to record that on an analysis of the
Civil Procedure Code, Section 391 is thus akin
to Order 41, Rule 27 of the C.P. Code.”
14. It is contended that the law as set out in the
aforesaid decisions has been settled and Section 391
of the Code of Criminal Procedure, 1973 can be invoked
either at the behest of the accused or the
prosecution, regard being had to the concept of
justice and fairplay. Hence the appellate Court
should not hesitate to exercise the powers under
Section 391 of the Code of Criminal Procedure, 1973.
15. It is further contended that the impugned
order does not address this issue at all and the
Sessions Court has rejected the application on the
ground that the same would open the floodgates
resulting in stalling of all convictions. It is
submitted that the accused is ready and willing to
subject himself to cross-examination if allowed to
lead evidence and no prejudice will, therefore, be
caused to the respondent-complainant.
16. The major thrust of the application, however,
seems to be the perceived change in the law after the
judgment and order of conviction. It is submitted
that the Supreme Court in Hiten Dalal’s case (2001
Criminal Law Journal page 4647) and in the case of K.N.
Bina v. Muniyappan (2001 Cri. L.J. 4741) has
made it obligatory upon the accused to lead evidence
if he desires to rebut the presumption that arises
under Section 139 of the Negotiable Instruments Act
since the effect of the presumption is to place the
evidential burden on the accused of proving that the
cheque was not received towards discharge of any
liability. The said presumption cannot be rebutted by
merely relying upon documents or proving the said
documents. It is pointed out that the Supreme Court
in the case of Hiten Dalal’s case (2001 Criminal Law
Journal paged 4647) while considering the Constitution
Bench decision in the case of D.B. Desai’s case
observed as under:
“23. The words …..’unless the contrary is
proved’ which occur in this provision make it
clear that the presumption has to be rebutted
by “proof” and not by a bare explanation which
is merely plausible. A fact is said to be
proved when its existence is directly
established or when upon the material before
it the court finds its existence to be so
probable that a reasonable man would act on
the supposition that it exists. Unless,
therefore, the explanation is supported by
proof, the presumption created by the
provisions cannot be said to be
rebutted…..”;
17. It is pointed out that the Supreme Court in
that case applied the principle to Section 139 of the
Negotiable Instruments Act for the first time and went
on to consider whether the accused had supported his
defence contained in his 313 statement by any proof
sufficient to rebut the presumption. While
approaching the evidence, the Supreme Court in para
34 observed that “…..The Appellant alone could
have said why he had admittedly executed the said
cheque, handed them over to the bank and never asked
for their return. He did not chose to do so.” It is,
therefore, submitted that in view of Hiten Dalal’s
case (2001 Criminal Law Journal paged 4647), which
was reported in the Criminal Law Journal only after
the judgment of conviction, the accused is required to
step into the witness box to prove his defence,
namely, that there was no consideration for issue of
the cheques as the shares were not transferred to him
as they were at the relevant time lying with the
financial institutions. The accused states that he is
ready to offer the best evidence and corroborate his
explanation contained in his statement by proof by
stepping into witness box. Not doing so during the
trial cannot be ground for not invoking the power
under Section 391 Cr.P.C. since that power is to
be exercised in the context of the concept of justice
and fairplay and with a view to vindicate the
innocence of a person wrongly accused. It is pointed
out that the accused did apply for examination of
defence witnesses and issue of witness summons, but
the learned Magistrate did not consider the said
application invoking Section 294 of the Code of
Criminal Procedure, 1973.
18. It is further pointed out that the documents
Exhibits D-1 to D-4 suggest that some of the shares
which are the subject-matter of the transaction are in
the custody of financial institutions, namely, Central
Bank of India and Maharashtra State Financial
Corporation and, therefore, the shares were never in
possession of the accused as falsely stated by the
complainant. The applicant-accused now wants to lead
evidence to prove that the balance shares were also
not with him. It is further submitted that in the
instant case, it is the bare word of the complainant
in cross-examination that the physical custody of the
shares, which were the subject-matter of the
transaction, were always with the accused. Therefore,
the accused should be given an opportunity by stepping
into the witness-box to prove that the bare word of
the complainant is not true.
19. It is submitted that the balance of
convenience is also in favour of the accused since no
prejudice would be caused to the complainant if the
accused is allowed to examine himself and present the
aforesaid facts and he would be open to
cross-examination by the complainant. On the other
hand, irreparable harm will be caused to the accused
if he is deprived of this opportunity as he would be
sent to jail on a mere technicality.
20. After having given anxious consideration to
the submissions of the learned advocate for the
Applicant/Accused, I am afraid no case has been made
out for interfering with the impugned order of the
learned Additional Sessions Judge by granting the
relief prayed for. Dealing with the contention that
the Hiten Dalal’s case and Bina’s case (supra) set
out a different, if not new, proposition in law which
was not in existence prior to the date of conviction
of the accused, the learned Additional Sessions Judge
has rightly rejected the said contention since there
is nothing new in what the Supreme Court has said in
the said two decisions. The Apex Court has in the
aforesaid decisions only reiterated the position by
reference to the earlier authorities which set out the
same principle as to the standard of proof required.
The Supreme Court has in Hiten Dalal’s case referred
to its decisions in the earlier cases of (i)
Dhanvatrai Balwantrai Desai v. State of Maharashtra,
, (ii) V.D. Jhingan v.
State of U.P., ; (iii)
Sailendranath Bose v. State of Bihar, A.I.R. 1968 S.C.
1292; and (iv) in the case of Ramkrishna Bedu Rane
v. State of Maharashtra .
21. Regarding the observations of the learned
Additional Sessions Judge that granting of such
applications would open the floodgates resulting in a
spate of such applications filed purely with a view to
delay and or subvert the judgments of conviction
passed by trial Courts, it seems to me that the said
observations are not without merit and the
apprehension is justified. However, mere probability
or possibility of the floodgates being opened would
not necessarily prevent the Court from entertaining
the application under Section 391 of the Code of
Criminal Procedure, 1973 allowing the accused to lead
evidence in appeal from conviction, if it was
absolutely necessary in the “fact situation” for the
purpose of doing justice between the parties.
22. All the decisions cited by the learned advocate
for the applicant are agreed that the exercise of
power by the Judge under Section 391 of the Code of
Criminal Procedure must be to meet the ends of justice
so that injustice is not done to the accused on
account of some irregularity in the conduct of trial
or where the trial Court through ignorance has omitted
to record the evidence of circumstances essential to
elucidate the truth, with a caveat, that exercise of
such power should not be with a view to fillup the
lacunae in the evidence. Thus the Court acting under
Section 391 of the Code of Criminal Procedure, 1973 is
required to exercise its discretion to allow the
applicant-accused to lead evidence by examining
himself at the appeal stage with circumspection and
caution and only with the object of doing justice
between the parties in the facts and circumstances of
the case. However, if the purpose of the prosecution
or the accused to adduce evidence at the appeal stage
is for the purpose of filling in lacunae, then such an
application must be rejected.
23. In the present case it is seen that the
applicant-accused had not disclosed any defence prior
to the trial. The applicant-accused, for reason best
known to him, has not sent any reply to the statutory
notice of demand under Section 138 of the Negotiable
Instruments Act. The failure to reply to this 138
notice not being explained would raise a presumption
that the Accused had, in fact, no defence whatsoever.
After the prosecution was launched and the evidence on
behalf of the complainant concluded and the Section
313 statement of the Accused recorded, the
Applicant-accused was offered the opportunity to lead
evidence by examining himself or examination of
witnesses in his defence. However, he declined to do
so. No doubt, he had filed an application dated
19.5.2001 for issue of witness summons, but that
application was not pressed and notice was given by
the Accused to the complainant under Section 294 Code
of Criminal Procedure in August 2001 and the documents
marked Exhibits D-1 to D-4 were taken on record by
consent of the parties. Thus, at the stage of trial,
the applicant-accused sought to rebut the presumption
only on the basis of these four documents, which the
Applicant/Accused produced at the time of recording
his statement under Section 313 of the Code of
Criminal Procedure. In his 313 statement, the accused
made it explicit that except for the production of the
documents, he did not want to examine himself or any
defence witness. It is not the case of the applicant
accused that at the trial when he declined the offer
to lead evidence in his defence, he did not have the
benefit of legal advice. He was represented by an
advocate. It, therefore, cannot be argued that he
gave up a valuable legal right of examining witnesses.
in his defence out of ignorance of the law. The
applicant-accused has with full knowledge of the facts
and the law applicable deliberately restricted his
defence to the said four documents Exhibits D-1 to D-4
to prove that the shares were not given to him by the
complainant and were not in his possession as the same
were in possession of financial institutions.
24. By this application under Section 391 of the
Code of Criminal Procedure, 1973, the
applicant-accused seeks to rebut the presumption under
Section 139 of the Negotiable Instruments Act by
leading evidence in his defence to prove that all the
shares were not in his possession but in possession of
financial institutions. This clearly is an
improvement in the defence as the four documents
Exhibits D-1 to D-4 are in respect of some 10-12
shares only while the consideration for issue of the
cheques admittedly is for surrender of all 12% shares
in Reliance Silicon India Ltd. by the complainant to
the accused. It is clear that a new case is sought to
be put up in appeal by the applicant-accused stepping
into the witness box and examining himself. The
applicant-accused chose not to reply to the said
notice under Section 138 of the Negotiable Instruments
Act, he chose not to examine himself or lead any
evidence in defence at the trial; he chose not toe
press his application for issue of witness summons;
and chose to restrict his defence to the four
documents only, namely, Exhibits D-1 and D-4 which
pertained only to some 10-12 shares and not all
shares of Reliance Silicon India Ltd. The application
for witness summons which the accused claims to have
filed in the trial Court is to before this Court
today. It is not clear whether the case of the
applicant-accused is that these witnesses whom he
proposed to examine would prove that all shares were
not in his custody but in custody of financial
institutions. If that was, in fact, his defence, then
the applicant-accused will be deemed to have given up
this defence by waiving his right to lead evidence and
restricting his defence to only the four documents
which admittedly cover only some and not all the
shares. It is the case of the Applicant/Accused that
since there was no consideration, the accused was
entitled to stop the payment of the cheques. If this
was, in fact, the defence of the accused, he would
have replied to the notice field under Section 138 of
the Negotiable Instruments Act; he would have insisted
on summoning the witnesses whom he proposed to examine
by issuing witness summons and he would not have
declined the offer of examining himself and lead
evidence after his statement under Section 313 of the
Code of Criminal Procedure was recorded.
25. It is clear that the accused at the stage of
appeal is now trying to set up a new case. The
affidavit of respondent No. 2 dated 23.1.2003 makes
reference to the declaration of the Accused Yogendra
Bhagatram Sachdev dated 23rd August 1994 filed in Suit
No. 3978 of 2002 stating that the entire shareholding
of Reliance Silicon India Ltd. Is in the name of the
applicant. This indicates that the shares which
belonged to respondent No. 2 have been duly transferred
to the name of the applicant-accused. Thus no case
has been made out by the applicant-accused to allow
him to examine himself or lead evidence in his defence
at the stage of Appeal. It is clearly an attempt to
improve on the defence, if not to set up a anew
defence altogether. This Court in exercise of the
jurisdiction under Section 391 of the Code of Criminal
Procedure, 1973, as clearly laid down in various
decisions of the Apex Court, is required to exercise
its discretion with circumspection and caution and
must disallow any such application if the power under
Section 391 of the Code of Criminal Procedure, 1973 is
sought to be misused or abused. In the circumstances,
the application must fail. The application is
rejected and disposed of accordingly. The learned
Judge hearing the appeal will not be influenced by any
of the observations made above.
26. Parties to act on an ordinary copy of this
order duly authenticated by the Sheristedar of this
Court.