1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.1588 OF 2009 M/s.Bagri Minerals and Chemicals Ltd. & Anr. : Applicants V/s. M/s.Gemstone Investments Ltd. & Anr. : Respondents ... Mar.Ashok Bhatia with Mr.Rishi Bhuta for the applicants. Mr.Raja Thakare with Mr.Shriram Shirsat for respondent no.1. Ms A.T. Jhaveri, Addl. Public Prosecutor for the State. ... CORAM : S.A. BOBDE, J. DATE : AUGUST 31, 2009. P.C.: 1. The applicants have challenged the order dated 31.1.2009 passed by the 3rd Ad-hoc Addl. Sessions Judge, Sewree, rejecting their application for permission to examine certain witnesses. The applicants are accused who have been convicted under section 138 of the Negotiable Instruments Act. They have filed a revision under section 397 of the Cr.P.C. before the Sessions Court which is pending. In that revision, they made an application for permission to examine certain witnesses whose evidence, according to them, is relevant for proving that the accused- applicants had no reason to issue a cheque to the complainant because the 2 complainant had transactions with these witnesses. This application was rejected. The learned Sessions Judge rejected this application on two grounds. Firstly, that there was no power to take additional evidence in a revision application because such a power was available only to an appellate Court. Secondly, according to the learned Sessions Court, ample opportunities were offered to the applicants for examining the said witnesses, but they failed to serve those witnesses with witness summons and, therefore, they ought not to be granted that opportunity now. 2. As regards the first reason for rejecting the application, there is substance in the submission on behalf of the applicants. Sub-section (1) of Section 399 of the Cr.P.C. provides as follows:- “399. Sessions Judge’s powers of revision.--(1) In the case of any proceeding the record of which has been called for by himself the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under sub-section (1) of section 401.” It is thus clear that the Sessions Judge can exercise all or any of the powers which can be exercised by the High Court under sub-section (1) 3 of section 401. Those powers are as follows:- “401. High Court’s powers of revision.--(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.” The aforesaid section clearly provides that the powers conferred on a Court of appeal, inter alia, by section 391 may be exercised by a High Court while deciding a revision. Section 391 of the Cr.P.C. empowers an appellate Court to take additional evidence or direct it to be taken by a subordinate Court. The aforesaid legislative scheme clearly confers the power to record additional evidence on the Sessions Judge entertaining and deciding a revision application. It must, therefore, be held that the order of the learned Sessions Judge that there was no power to take 4 additional evidence in the course of a revision is not correct. 3. Whether the matter should be remanded back to the Sessions Court or the application should be dealt with in this Court may now be seen. The Sessions Court has held that the application for taking additional evidence is liable to be rejected because in the course of the trial, the applicants failed to serve a witness summons on these very witnesses, sought to be examined now. The learned counsel for the applicants submitted that this was because they did not know their address. It is not possible to accept this reason since it is obviously the duty of the person desiring to examine a witness to find out his address and serve a witness summons on him. There is also nothing on record from which it can be seen that the applicants, in any way, called upon the respondents to furnish their address and that the respondents refused or evaded to do so. Mr.Thakare, the learned counsel for the respondent no.1, points out from the roznama, the contents of which are not disputed, that the application for examination of these witnesses who are now sought to be examined in revision was taken out first in August 2006 which was allowed almost immediately by the Court, but witnesses were not examined. Thereafter, in October 2006, a fresh application for issuing witness summons was made by the applicants and eventually on 15.6.2007 the applicants closed their evidence by stating that they do not 5 want to examine any witness. In fact, the judgement was thereafter delivered in August 2007 by the trial Court. In these circumstances, there is no reason to interfere with the judgement of the learned Sessions Judge that the applicants ought not to be allowed to lead additional evidence by examining certain witness having failed to take appropriate steps to do so at the time of trial. 4. In this view of the matter, this application under section 482 of the Cr.P.C. is dismissed. S.A. BOBDE, J.