IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1451 OF 2008. APPLICATION NO.1451 OF 2008. APPLICATION NO.1451 OF 2008. Bhupat Rai Gandhi. ..Applicant. versus The State of Maharashtra & Anr. ..Respondents. .... Mr.C.K. Pendse, for the Applicant. Mr.J.P.Yagnik, APP, for the Respondent-State. None present for the Respondent No.2. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 11TH AUGUST,2008. : 11TH AUGUST,2008. : 11TH AUGUST,2008. P.C. 1. The Applicant has been arraigned as an Accused in the complaint filed by the second Respondent-Bank under section 138 of the Negotiable Instruments Act, 1881. The Applicant was convicted on 28th February 2006 by the learned Magistrate. An Appeal was preferred against the order of conviction before the Court of Sessions. During the pendency of the Appeal, an Application was made by the Applicant under section 391 of the Code of Criminal Procedure, 1973 for permitting the Applicant to lead further evidence by examining an Officer of Syndicate Bank, Kandivli Branch, Mumbai and other material witnesses. The said Application has been rejected by the learned Additional Sessions Judge. By this Application under section 482 of the Code of Criminal Procedure, 1973, - 2 - the Applicant has challenged the said order dated 19th July 2007. 2. The submission of the learned Advocate for the Applicant is that the certificate issued by the Syndicate Bank, Kandivli Branch, Mumbai on 30th April 2008 discloses that the cheques in dispute were issued by the Applicant’s son and not by the Applicant. He submitted that the Applicant ought to have been granted an opportunity to adduce evidence to prove his innocence in the light of what is stated in the certificate dated 30th April 2008 issued by the Syndicate Bank. 3. I have carefully considered the submissions. It must be noted here that the Application made by the Applicant under section 391 of the said Code is based on the following averments. "5. The Appellant submits that without going into detail fact at this stage, it is suffice to say that the said cheques was taken forcible from the house of the Appellant by causing undue influence, force and coercion upon the Appellant and his family members by the bank officer and his associate and it is - 3 - consistent defence of the Appellant during trial. 6. The Appellant submits that it vital and material fact for adjudication of present appeal that neither the appellant is drawer of said cheques or holder of the account of said cheques in question of the present appeal and required to be brought on record. The Appellant has realized this fact after filing of present appeal while examining document. The Appellant submits that in view of this fact, it is just necessary and proper in the interest of justice to allow the appellant to adduce further evidence to substantiate the aforesaid fact by examining material witness to prove the fact that neither the appellant is drawer of said cheques or holder of the account of said cheques in question of the present Appeal." 4. In so far as assertions made in paragraph no.5 are concerned, no such case was made out by the Applicant during the pendency of the trial. The Applicant contested the complaint but he never raised a contention that the cheques in dispute were not - 4 - issued by him. On the grounds set out in the Application filed by the Applicant, the learned Sessions Judge was justified in not permitting the additional evidence in the Appeal. 5. The jurisdiction under section 482 of the said Code has to be exercised sparingly and in rare cases. No case is made out for interference. The Application is rejected. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]