1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1620 OF 2008 Suresh Vasant Katare ... Petitioner. V/s. Maruti Vishnu Pawar & Anr. ... Respondents. ----- Mr. Prashant P. Kulkarni for the Petitioner. Mr. M. A. Khan for Respondent no.1. Mr. Y.M. Nakhawa, APP for the State. ----- CORAM : A. S. OKA, J. DATED : JUNE 19, 2009 P.C. : 1. On 11th August, 2008 a notice for final disposal was issued. The petitioner has been arraigned as accused in the complaint filed by the first respondent for offence punishable under section 138 of the Negotiable Instruments Act, 1881. The petitioner was convicted by the learned Magistrate. An appeal against the order of conviction was preferred by the petitioner. In the said appeal, an application was made by the first respondent 2 (original complainant) for production of certain documents, presumably by invoking the provisions of section 391 of the Code of Criminal Procedure, 1973. By the impugned order dated 2nd November, 2007 the learned Additional Sessions Judge, allowed the said application. 2. The learned Judge permitted the respondent to produce registered post acknowledgment due receipt of the postal department and the parties were directed to remain present before the trial court. The trial court was directed to permit the first respondent to lead additional evidence and to record the statement of the petitioner under section 313 of the Code of Criminal Procedure, 1973. The challenge to the impugned order by the petitioner is on the ground that in the application made by the first respondent even the particulars of the documents which were sought to be produced were not incorporated. The said application was running into only three lines and no ground for invoking section 391 of the said Code of 1973 was made out therein. 3. The learned counsel appearing for the first respondent opposed the petition by pointing out that by the impugned order only a postal receipt showing service of the demand notice was permitted to be produced which 3 was not produced before the trial court. He, therefore, submitted that there is no error in the impugned order. 4. I have considered the submissions. The appeal preferred by the petitioner was against the order of conviction. The original complainant made an attempt to produce a document by filing an application on which impugned order has been passed. Normal rule is that such appeal is heard on the basis of the evidence on record of the trial court. Therefore, the power of the appellate court under section 391 of the said Code of 1973 has to be exercised cautiously and only in deserving cases. The court has also to consider the question of prejudice to the accused. 5. The perusal of the application made by the first respondent shows that it runs only into four lines. It states that the first respondent was desirous of producing certain documents and the said documents may be allowed to be produced in the interests of justice. Even the description of the documents sought to be produced was not incorporated in the application. There are no averments made as regards the relevancy of the documents sought to be produced. Nothing is stated in the application as to why at such a belated stage production of the documents was sought. The petitioner was called upon 4 to file reply to the said application. The application was completely devoid of particulars or any material averment. In absence of the description of the documents or particulars of the documents sought to be produced, the petitioner could not have filed a proper reply to the said application. The learned Additional Sessions Judge after hearing the parties, passed the impugned order. Considering the drastic nature of the order passed by the learned Additional Sessions Judge, such order could not have been passed on an application which was devoid of any particulars and which was very vague. On the basis of such vague application, the petitioner could not have dealt with the prayer which is ultimately granted by the Sessions Court. The impugned order passed on the basis of such vague application certainly caused prejudice to the petitioner accused. Therefore, the impugned order will have to be quashed and set aside. However, notwithstanding the setting aside of the impugned order, it will be open for the first respondent to file a fresh application before the appellate court containing appropriate averments for seeking permission to produce additional evidence. If such application is made, the same will be decided in accordance with the law. 6. Hence, I pass the following order : 5 i. The impugned order dated 2nd November, 2007 is quashed and set aside and the application dated 17th of October, 2007 filed by the first respondent is rejected. ii. Notwithstanding of this order, it will be open for the first respondent to make a fresh application before the Sessions Court. If such application is made, the same shall be decided in accordance with the law. iii. Record and proceedings be sent back immediately. (A.S.OKA,J.) .....