Ajitsinh Chehuji Rathod vs. State of Gujarat and Ors. (Neutral Citation: 2024 INSC 63) - (Supreme Court) (29 Jan 2024)

Power to record additional evidence under Section 391 of CrPC should only be exercised, when the party making such request is diligent

MANU/SC/0065/2024

Criminal

The instant appeal by special leave filed at the behest of the Appellant accused calls into question the order passed by the High Court rejecting the Application preferred by the Appellant under Section 482 read with Section 391 of the Code of Criminal Procedure, 1973(‘CrPC’).

Power to record additional evidence under Section 391 of CrPC should only be exercised, when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non- recording of such evidence may lead to failure of justice.

Section 118 sub-clause (e) of the Negotiable Instruments Act, 1881 (NI Act) provides a clear presumption regarding endorsements made on the negotiable instrument being in order in which they appear thereupon. Thus, the presumption of the endorsements on the cheque being genuine operates in favour of the holder in due course of the cheque in question which would be the complainant herein. In case, the accused intends to rebut such presumption, he would be required to lead evidence to this effect.

Despite having opportunity, the accused Appellant did not put any question to the bank official examined in defence for establishing his plea of purported mismatch of signature on the cheque in question and hence, present Court is of the firm opinion that the appellate Court was not required to come to the aid and assistance of the appellant for collecting defence evidence at his behest. The presumptions under the NI Act albeit rebuttable operate in favour of the complainant. Hence, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.

The Appellant had sought for comparison of the signature as appearing on the cheque through the handwriting expert by filing an application before the trial Court which rejected the same order dated 13th June, 2019. The said order was never challenged and had thus attained finality.

So far as the allegation of the accused appellant that he did not receive the notice under Section 138 of the NI Act is concerned, it would be for the appellate Court while deciding the appeal to examine such issue based on the evidence available on record and thus, there was no requirement for the appellate Court to have exercised power under Section 391 of CrPC for summoning the official from the Post Office and had rightly rejected the application under Section 391 of CrPC. There is no infirmity in the impugned orders warranting interference. Appeal dismissed.

Tags : PROVISION APPLICABILITY ADDITIONAL EVIDENCE