IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1614 OF 2010 IN CRIMINAL APPEAL NO.1249 OF 2011 WITH CRIMINAL APPLICATION NO.383 OF 2011 WITH CRIMINAL APPLICATION NO.1616 OF 2010 IN CRIMINAL APPEAL NO.1250 OF 2011 WITH CRIMINAL APPLICATION NO.384 OF 2011 WITH CRIMINAL APPLICATION NO.1617 OF 2010 IN CRIMINAL APPEAL NO.1251 OF 2011 WITH CRIMINAL APPLICATION NO.385 OF 2011 WITH CRIMINAL APPLICATION NO.1618 OF 2010 IN CRIMINAL APPEAL NO.1252 OF 2011 WITH CRIMINAL APPLICATION NO.386 OF 2011 WITH CRIMINAL APPLICATION NO.1619 OF 2010 IN CRIMINAL APPEAL NO.1253 OF 2011 WITH CRIMINAL APPLICATION NO.387 OF 2011 Procon Financial and Investment Pvt. Ltd. A Registered Company under the Companies Act, 1956, carrying on business from their Administrative Office at 5th Floor, Nanabhai Mansion, Sir P.M. Road, Fort Mumbai -- Applicant V/s. 1. M/s. Earnest Health Care Limited A Company registered under the Companies Act, 1956 and carrying on their business at 105, “Earnest Estate” 10th Floor, 194 N.C.P.A., Marg, Nariman Point, Mumbai – 400 021. 2. Mr. Ignatius John A Chairman and Managing Director of the Respondents No.1 and carrying on business at the address of Respondent No.1 herein above and residing at Triveni Bldg., A-15,66, Walkeshwar Road, Near Birla, School, Mumbai-400 006. 3. Mr. Franklin John Working in the office of Respondent No.1 and R/o. 17th Floor, Earnest House, Nariman Point, Mumbai – 400 021 4. Mrs. Renu John Working in the office of Respondents No.1 residing at Triveni Bldg., A-15,66, Walkeshwar Road, Near Birla School, Mumbai – 400 006. 5. The State of Maharashtra -- Respondents Smt. S.R. Kumbhat a/w. Ms. Suvarna Pratap, for the Applicant/Appellant. Ms. P.J.Kanani, for the R.Nos.1 to 4. Smt. Usha V. Kejriwal, APP for the R.No.5, State. CORAM :- J.H. BHATIA, J. DATE :- 28th September, 2011. J U D G M E N T 1. Heard. 2. Leave to prefer appeals against acquittal granted. 3. Appeals be registered. 4. Appeals admitted. With consent, the appeals are taken up for final hearing immediately. 5. The Appellant has also filed the Applications U/s.391 of Cr.P.C. to lead additional documentary evidence in support of the claim of the complainant. 6. To state in brief, the appellant had filed complaints U/s.138 of Negotiable Instruments Act, (N. I. Act) against respondent Nos.1 to 4. Respondent No.1 is a Company registered under Companies Act, Respondent No.2 was Chairman and Managing Director of Company and Respondent Nos. 3 & 4 were also working in the said Company as Directors and they were also responsible for the business of the Company. The complainant had supplied certain goods and machinery to the Respondent No.1, under lease agreement dated 8th August, 1995 and the respondents were provided lease finance of Rs.23,65,075/- for the period of 36 months. The agreement was signed by the respondent No.2, on behalf of the Respondent No.1. The machineries were delivered to the respondent under different invoices dated 8th August, 1995 and 19th September, 1995 and the complainant made the payment for the supply of the machinery to the respondent. For repayment of that amount the respondents issued 14 post dated cheques. Some of the cheques were honoured. In lieu of the cheques, which could not be encashed, fresh cheques were issued in the year 1998. Five such cheques were dishonoured and inspite of service of notice, payment was not made and therefore, five complaints were filed U/s.138 of N. I. Act against the Respondents. 7. It appears that before the trial Court defence of the accused was that though the cheques were issued, the machinery was not supplied and therefore, there was no legally enforceable liability. 8. According to the complainant all the relevant documents to establish that machinery was supplied to the Respondent No.1 Company were made available to the advocate for the complainant before the trial Court. However, the advocate produced some of the documents before the trial Court under assumption that those documents are sufficient to prove the liability and to establish that the machinery was actually received by the accused company. However, some of the documents which he felt not necessary were not produced by him. Those documents are sought to be produced now as additional evidence U/s.391. It is contended that due to mistake committed by the advocate for the complainant, these documents were not filed. It is also contended that the documents clearly show certain admission from Respondent No.1 and go to establish that the machinery was actually supplied and the payment for the same was made by the complainant. The documents which are sought to be produced include a letter from Respondent No.1 to the Complainant for replacement of the cheque, which was issued earlier and invoice from M/s. Ethic Pharma Laboratories & Engineers Private Ltd. dated 8th August, 1995 shows that Water Treatment Plant was actually supplied and installed by M/s. Ethic Pharma Laboratories & Engineers Private Ltd. in the premises of Respondent No.1. As per the order placed by the complainant, value of that machinery was Rs.10,50,000/-. Similarly, delivery challan from M/s. Ethic Pharma Laboratories & Engineers Private Ltd. of the same date also shows that the delivery of the Water Treatment plant was received by the Respondent No.1 Company. There is another invoice with delivery challan dated 19th September, 1995 which shows that the M/s. Ethic Pharma Laboratories & Engineers Private Ltd. had supplied Incinarator 100 Kgs. capacity to the Respondent No.1 Company. There is certificate dated 29th September, 1995 from M/s. D.C. Ostwal and Company Chartered Accountants, to show that as per the records made available by the Respondent No.1 Company, they had received the Water Treatment Plant as well as Incinarator 100 Kgs. capacity and they were installed in the premises of Respondent No.1 and the respondent No.1 had also claimed depreciation under Income Tax Act for that machinery. There is another certificate dated 14th February, 1996 from Mr. Rajendra Gupta & Associates Chartered Engineers, which shows that on inspection of the plant and machinery at the factory premises of Respondent No.1 the Water Treatment Plant and Incinarrator were found installed and they were in good condition. There is letter dated 21st February, 1996 issued by the Respondent No.1 to the Complainant Company acknowledging the receipt of the said machinery from Ethic Pharma Laboratories & Engineers Private Ltd. The letter dated 22nd April, 1998 from Respondent No.1 to the Complainant shows that the Complainant had verified all the documents, papers and also done physical verification of the assets of the Respondent Company before the complainant had disbursed the funds. The certificate dated 27th March, 1999 from U.T.I. bank shows that the complainant had made payment to Ethic Pharma Laboratories & Engineers Private Ltd. Company by two cheques of Rs.10,50,000/- & 13,15,075/-. These are payment towards price of the machinery supplied to the respondent by Ethic Pharma Laboratories & Engineers as per the documents referred above. 9. These documents would go to show that the Respondent No.1 company have received the Plant and machinery for which the payment was made by the complainant company as per the agreement between the parties. Prima facie the plea taken by the respondent about non supply of machinery is inconsistent with the documents sought to be produced. Due to the mistake committed by the advocate for complainant in not producing the above referred documents, the trial Court came to conclusion that the complainant had failed to prove that there was legally enforceable liability for which the cheques were issued. Had these documents been produced the Trial Court possibly would not come to such conclusion. I may add that these are the prima facie observations for the purpose of consideration as to whether the production of documents as additional evidence is necessary. The truth or otherwise of the documents needs to be proved by leading appropriate evidence. 10. Taking into consideration the facts and circumstances, noted above, in my opinion, the interest of justice and fair trial requires that the complainant should be allowed to produce the documents and lead additional evidence. 11. The learned counsel for the respondents vehemently contended that the complainant should not be allowed to fill the lacunae in this evidence by producing these documents and by leading additional evidence particularly when the trial court has already acquitted the accused persons. In support of this the learned counsel placed reliance on several authorities including Yogendra B. Sachdev V/s. State of Maharashtra, reported in 2003 Bom. C.R. (Cri.) 810, Ajay Kumar Garg Vs. Gaurav, 2009(O) AIJEL-SC 43964 and Rambhau & Anr. Vs. State of Maharashtra, 2001 CRLJ 2343 SC. It appears to be settled position of law that the powers u/s. 391 of Cr.P.C. should be exercised by the appellate court spairingly with circumspection and the power should not be exercised just to allow a party to the appeal to fill in the lacunae. However, the appellate court will also not desist from exercising powers, if it is necessary in the interest of justice and fair trial. In Ashok Tshering Bhutia, 2011 STPL (LE-Crim) 34597, Supreme Court observed thus: “28 .- Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interest of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.” “32 .- In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 of Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution’s case.” 12. In the present case, the complainant has explained that the above referred documents were made available to the advocate but the advocate felt that other documents, which were produced, were sufficient to establish that there was legally enforceable liability for which cheques were issued. Prima facie, the documents referred above may provide strong evidence in favour of the complainant and may falsify the defence of the accused . Due to the mistake committed by the advocate the complainant should not be allowed to suffer. Therefore, in my opinion in the interest of justice, it is necessary to allow the complainant to lead additional evidence by producing above documents. 13. Therefore, the applications for leading additional evidence U/s. 391 are allowed and those documents are permitted to to produced. 14. Having allowed the complainant to lead additional evidence U/s.391, in my opinion if concerned Magistrate or the Sessions Court is directed to record the evidence in respect of these documents and submit the same before this Court for consideration in the pending appeal against acquittal, this Court will not have benefit of the opinion of the trial Court about such evidence and documents. Similarly, both the parties will also be deprived of the consideration of the documents and evidence, which may be lead by them in support or against those documents by the Trial Court, therefore, in my considered opinion, it would be appropriate to set aside the impugned judgments and orders passed by the trial Court and to remand the matters back for giving opportunity to the complainant to lead additional evidence and also to the accused to lead any evidence in defence, if they so desire. Thus both the parties will get equal opportunity. 15. The learned counsel for the respondents accused contended that the Respondent Nos. 3 & 4 had resigned from the post of Director on 1st January, 1997 and this fact was admitted by the complainant in the Cross Examination. It appears that in the Cross examination the complainant’s witness had only stated that one Pravin Jain had informed him on the basis of information given to him by the Secretary of Respondent No.1 Company that accused nos. 3 & 4 had resigned from the post of Directors on 1st January, 1997. However, the record reveals that Form – 32 about resignation of these accused was submitted to the Registrar of Companies on 21st July, 1998. The cheques were issued on 8th March, 1998 and were dishonoured on 19th March, 1998. During that period, as per the record maintained by Registrar of Companies, Respondent Nos. 3 & 4 were the Directors of the Respondent No.1 Company. Whether they were responsible for the conduct of the business or had ceased to participate in the conduct of business after submitting resignation, is a question of fact which can be proved by leading appropriate evidence by the parties. In the impugned orders of acquittal, the trail Court had not given clear finding that Respondent Nos. 3 & 4 were responsible for conduct of the business and therefore, it cannot be said that they would be unnecessarily put to trial again, if the matters are remanded. 16. For the aforesaid reasons, the appeals are allowed and impugned judgment and order of acquittal in Criminal Case Nos. 66/SS/2008, 67/SS/2008, 68/SS/2008, 69/SS/2008 & 64/SS/2008 are hereby set aside and the cases are hereby remanded back to the concerned Metropolitan Magistrate for trial again. The complainant shall be allowed to lead additional evidence in respect of documents, which are produced before this Court. The accused person shall also be at liberty to lead any evidence, if they so desire. The trial Court shall expedite the trials and dispose of the matters as early as possible and preferably within 6 months from date of appearance. The parties shall appear before trial Court on 1st December, 2011. All the applications and appeals stands disposed off accordingly. ( J.H. BHATIA, J.)