*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +Crl.P. No.2509 OF 2010 % 20-04-2010 Between: # Dasari Radha Krishna …..Petitioner And: $ State of A.P., rep. by the PP., High Court of AP., Hyderabad and another ….Respondents. !Counsel for the Petitioner : Sri Smt K. Sesharajyam Counsel for the 1st Respondent: Public Prosecutor Counsel for the 2nd respondent: Ch. Ravindra Babu <Gist : >Head Note: ? Cases referred: 1. 2004 CRI.L.J.2050 2. 2005 CRI.L.L.3533 HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2509 OF 2010 Date: .04.2010 Between: Dasari Radha Krishna …..Petitioner And: The State of AP, rep. by PP and another …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2509 OF 2010 ORDER: 1. This petition is filed by the appellant/accused/petitioner questioning order dated 08.03.2010 passed in Criminal M.P.No.40 of 2010 in Criminal Appeal No.275 of 2009 by the IX Additional Sessions Judge (Fast Track Court), Guntur by which the lower court dismissed the petition filed under Section 391 Cr.P.C refusing permission to lead additional evidence by way of examining Branch Manager, Andhra Bank, Labbipet, Vijayawada and Kundaravalli Krishna Murty. 2. The petitioner/accused was convicted and sentenced by the trial court for offence under Section 138 of the Negotiable Instruments Act (in short, the Act). As against the said conviction and sentence, the accused filed the appeal before the lower appellate court. In that appeal, the petitioner filed petition under Section 391 Cr.P.C which ended in dismissal. 3. Firstly, it is contention of the petitioner that cheque in question was not drawn by him on his account and that it was drawn on account of Bhavana Sai Associates which is a partnership concern and that therefore requirements of Section 138 of the Act are not satisfied. To prove the said fact that the cheque in question was drawn on account of partnership firm and not on individual account of the petitioner, the petitioner wants to examine Branch Manager of Andhra Bank, Labbipet, Vijaywada as additional witness in the appeal. At the out set, it may be noted that the said plea was not taken by the accused/petitioner in the trial court and no endeavor was made by the accused to prove the said fact when the matter was pending before the trial court. For the first time in the appeal, the petitioner/accused wants to raise the said point. It is contended that it is a pure question of law which can be raised in the appeal. I do not agree that the above point is a pure question of law. If it is a pure question of law, then it can be disposed of on evidence already available on record. The fact that the petitioner wants to examine an additional witness to prove facts required for the said plea itself indicates that it is not a pure question of law. It is undoubtedly a mixed question of fact and law. It is well settled law that no party can be permitted to raise a mixed question of fact and law for the first time in appeal. When such plea cannot be raised by the petitioner/appellant for the first time in the appeal, the question of permitting the petitioner to lead additional evidence in the appeal by way of examining the witness and marking certain documents in support of that plea, will not arise at all. It is contended that due to lack of proper legal advice in the trial court, the said plea could not be raised in the trail court. For whatever reasons the petitioner could not raise the plea in the trial court, for the first time the petitioner cannot raise the same plea in the appellate court because it is a mixed question of fact and law. 4. It is contended that during the course of business transactions, the cheque in question was obtained by Kundaravalli Krishna Murty without mentioning name of payee and that ultimately the said cheque fell into hands of the complainant/2nd respondent who pressed the same into service. Therefore, the petitioner wanted to examine the said Kundaravalli Krishna Murty as additional witness in the appeal. It may be noted at this stage that even when the matter was pending in trial court, the petitioner/accused filed Criminal M.P.No.4250 of 2007 for summoning Kundaravalli Krishna Murty and others and the said petition was allowed. In spite of it, the accused did not examine the said Krishna Murty as defence witness. It is contended that the trial court allowed petition for summoning witnesses on 14.11.2007 imposing a condition of filing their affidavits by 28.11.2007 and that as the petitioner could not comply with the said condition, the said witness could not be examined. It is evident that at each stage the petitioner has been playing dilatory tactics. When opportunity was given to examine the witness, the petitioner does not examine that witness. After his conviction, now the petitioner wants to examine the same witness in the appeal. In the circumstances, I also see no bonafides on behalf of the petitioner in filing the present petition in the lower appellate court. 5. Relying upon Zahira Habibulla H. Sheikh v. State of Gujarat[1] of the Supreme Court (Popularly known as Best Bakery Case), it is contended by the petitioner’s counsel that underlying object of Section 391 Cr.P.C is that the court must keep in view the very reason for which the courts exist i.e., to find out the truth and to dispense justice impartially and ensue also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice. Reliance was also placed on N.Somi Reddy v. State of A.P.,[2] of this Court. It is in the discretion of the appellate Court to permit production of additional evidence and it does not depend upon whether application was made by the accused or by the prosecution. At the same time, discretion of the Court has to be exercised in a judicious manner and not in arbitrary manner. Having regard to the background of this case, it is evident that the petitioner/accused filed the present petition in the lower appellate court under Section 391 Cr.P.C to fill up lacunae and without any bonafides. Therefore, the lower appellate court rightly rejected petition of the petitioner/accused for permission to lead additional evidence in the appeal. I do not find any valid or legal reasons to set aside the order passed by the lower court. 6. In the result, the petition is dismissed. ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date: .04.2010. Note: L.R. Copy to be marked. //By Order// Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NO.2509 OF 2010 Date: .04.2010 Gk. [1] 2004 CRI.L.J.2050 [2] 2005 CRI.L.L.3533