IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1258 OF 2008 Essar Tools & Anr. .. Petitioners Vs. BIPICO Industries (Tools) Pvt. Ltd. & Anr. .. Respondents Mr.Sanjay A. Bhatia for the petitioners. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 11th September 2008. : 11th September 2008. : 11th September 2008. P.C.: . By this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, the petitioners have taken an exception to order dated 07th May 2008 passed by the Sessions Court by which application made by the petitioners accused for leading additional evidence has been rejected. The petitioners invoked section 391 of the said Code of 1973. The petitioners are accused in a complaint filed by the 1st respondent under section 138 of the Negotiable Instruments Act, 1881. On 31st August 2005 the petitioners were convicted. On 21st September 2005, an appeal was preferred by the petitioners against order of conviction. More than one year after filing of the appeal, the petitioners filed an application under : 2 : section 391 of the said Code of 1973. The said application has been rejected by the impugned order. The learned counsel appearing for the petitioners relied upon a decision of this Court in the case of State of Maharashtra Vs. Vasant Shankar Mhasane (1993 Criminal Law Journal 1134) and submitted that power under section 391 of the said Code of 1973 gives discretion to the Appellate Court to record additional evidence if additional evidence is necessary for a fair decision of the appeal. His submission is that if additional evidence is found necessary for a fair decision of the appeal, it is the obligation of the Appellate Court to permit additional evidence being led. His submission is that there is apparent overwriting on one of the two cheques and alterations made on the cheques could be easily seen. He, therefore, submitted that it was necessary to send the cheques for examination of handwriting expert. He submitted that the learned Judge has therefore committed an error in rejecting the application. 2. I have considered the submissions. It will be necessary to refer to the averments made in application under section 391 of the said Code. In paragraph 5 the petitioners have stated thus: : 3 : "5. However, no opportunity was given to the applicants to lead their evidence and were misinformed that defence witness cannot be called in a criminal trial. Hence, this application for examination of defence witness, ....." Grounds (c) and (d) of the said application which are pressed into service read thus: "(c) The applicant were misinformed that no defence evidence can be lead in a criminal trial. (d) There was change of two lawyers in the trial Court due to which the case of the applicant was not properly presented." 3. The applicant has not stated as to who misinformed him. Considering the fact that more than sufficient opportunity was available to the petitioners to adduce evidence before the learned trial Judge, the learned Additional Sessions Judge has dismissed the : 4 : application. Considering the aforesaid grounds taken in the application filed by the petitioners, this is not a case where interference can be made by exercising extra- ordinary jurisdiction under Article 227 of the Constitution of India. The petitioners have chosen to make wild allegations in the application without giving any particulars and without naming any individual. Power under section 482 of the said Code of 1973 has to be exercised sparingly and that also in very rare cases. No case for interference is made out. Petition is rejected. (A.S.Oka,J)