IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.11.2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1093 of 2010 and M.P.No.1 of 2010 A.Gopalakrishnan .. Petitioner/Petitioner Vs 1.R.Selvaraj (died) 2.Sumathy .. Respondents/Accused 1 & 2 PRAYER: Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C. to call for the records pertaining to Crl.M.P.No.21/2010 in C.A.No.70/2010 and set aside the order dated 08.10.2010 passed by the learned I Additional Sessions Court, Coimbatore and direct the I Additional Sessions Court to receive additional evidence sought to be produced by the petitioner. For Petitioner : Mr.K.V.Shanmuganathan ----- O R D E R The arguments advanced by Mr.K.V.Shanmuganathan, learned counsel for the petitioner were heard. The documents filed along with the petition were also perused. 2. The petitioner was prosecuted as an accused in C.C.No.534/2004 on the file of the learned Judicial Magistrate No.VI, Coimbatore for an alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The case was instituted on a private complaint preferred by the deceased first respondent R.Selvaraj. During the pendency of the case, the first respondent passed away and his wife, namely the second respondent herein got impleaded and pursued the case. The trial ended in a judgment holding the petitioner herein guilty of the offence alleged and conviction of the petitioner for the said offence with rigorous imprisonment for one year and an order directing payment of an amount equal to the cheque amount as compensation to the respondents. 3. As against the said judgment of the trial court dated 12.03.2010, the petitioner has preferred an appeal in https://hcservices.ecourts.gov.in/hcservices/ C.A.No.70/2010, which is now pending on the file of the First Additional District and Sessions Judge, Coimbatore. In the said criminal appeal, the petitioner filed a petition in Crl.M.P.No.21/2010 under Section 391 of Cr.P.C. seeking the leave of the court to adduce additional documentary evidence. The petitioner, by filing such a petition, tried to introduce a copy of the legal notice allegedly sent by an advocate on behalf of the deceased first respondent to the petitioner/appellant on 05.05.2004 to show that a statutory notice was issued on an earlier occasion pursuant to the dishonour of the cheque, but without choosing to prefer a complaint within the statutory time, the first respondent chose to present the cheque for collection once again, got it dishonoured for the second time and created a fresh cause of action by issuing a second statutory notice. 4. The petition was opposed by the second respondent by filing a counter affidavit denying the petition allegations and contending that the document now sought to be introduced could have been brought into existence, to defeat the rights of the respondents and to protract the case as long as possible. The learned First Additional District and Sessions Judge, Coimbatore, after hearing both sides, came to the conclusion that the petitioner herein had not made out a case for reception of additional evidence and dismissed the said petition by the impugned order dated 08.10.2010. Questioning the correctness and legality of the said order passed by the learned First Additional District and Sessions Judge, Coimbatore, the present Criminal Revision Case is filed. 5. The learned counsel for the petitioner mainly relies on the contention that while considering the question of granting leave to the appellant to adduce additional evidence in the appellate stage, the learned First Additional District and Sessions Judge, chose to consider the genuineness and reliability of the document sought to be introduced as additional evidence, which ought not to have been done and that hence the impugned order of the appellate court is liable to be interfered with and set aside by this court in exercise of its revisional power. 6. Keeping in mind the above said contention raised by the learned counsel for the petitioner, this court considered the impugned order passed by the learned First Additional District and Sessions Judge, Coimbatore. Of course it is true that the learned appellate judge has made some observations to the effect that the document now sought to be introduced as additional evidence could have been created only after the disposal of the calendar case by the trial court. But, by and large, the said observation and other observations were focussed on the question whether the petitioner herein/appellant therein had made out a case for reception of additional evidence. Admittedly, the petitioner did not produce the document now sought to be introduced as additional evidence when he was https://hcservices.ecourts.gov.in/hcservices/ examined as a defence witness before the trial court. No question was put to the witnesses examined on the side of the complainant suggesting that a notice dated 05.05.2004 was issued to the petitioner based on the earlier note of dishonour of the cheque. It was also not suggested to the witnesses examined on the side of the complainant that a second cause of action was created based on the dishonour of the cheque for the second time, when presented without the authorisation of the petitioner for such presentation. It is also not the case of the petitioner that the existence of the document, now sought to be introduced as additional evidence, was not within the knowledge of the petitioner when the case was pending before the trial court and that the petitioner got knowledge of the existence of such document only after the disposal of the calendar case. It is also not the case of the petitioner that though the existence of the document was known to the petitioner, it was beyond the reach of the petitioner, as he could not lay his hands on the document, despite his due diligence in making an effort to get that document. Moreover, no reference to such a document was made in the oral evidence of the petitioner, who deposed as D.W.1. 7. If all these aspects are taken into consideration, no other conclusion except the one that the petitioner has not made out a case for the reception of additional evidence, can be arrived at. In fact, the court below has also arrived at such a conclusion. For arriving at such a conclusion, the court below narrated the defence plea taken in the counter statement of the respondent and at the end concluded that no case for reception of additional evidence was made out. This court does not find any defect or infirmity in the said order passed by the lower appellate court. There is no merit in the criminal revision case and the same deserves to be dismissed, even without notice to the other side. 8. In the result, the criminal revision case is dismissed. Consequently, the connected miscellaneous petition is closed. asr/ Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The First Additional District and Sessions Judge, Coimbatore. 2. Do Through the Prl Sessions Judge, Coimbatore. 3. The Judicial Magistrate No.VI, Coimbatore. 4. Do Through the Chief Judicial Magistrate,Coimbatore. + 1 cc to Mr. K.V.Shanmuganathan, Advocate SRNo.79776 NG(CO) SR/15.11.2010 Crl.R.C.No.1093 of 2010 https://hcservices.ecourts.gov.in/hcservices/