1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCE. APPLICATION NO.171/2008. M/s. Globe Trotters International Situated at Shanker Parvati Building, 18th June Road, Panaji, Goa Through its proeprietor, Shri Raven Kumar Tangri .. Applicant Versus 1. Joseph Fernandes, Kristal Sands Beach Resorts, Houe No.251, Gaura Vaddo, Calangute, Bardez, Goa 403516. 2. State of Goa, Through Public Prosecutor, Panaji, Goa .. Respondents Mr. V. A. Lawande, Advocate for the applicant. Mr. N. N. Sardessai,Advocate for the respondent No.1. Coram :- U. D. SALVI, J. Order reserved on : -07/06/2010. Order pronounced on: - 15/06/2010. ORDER : Section 391 of Cr.P.C.,1973 has been invoked by the appellant in the present appeal against the judgment and order of acquittal dated 01.11.2006 passed by the learned Ad hoc Assistant Sessions Judge, Panaji for seeking leave of this 2 Court to adduce further documentary evidence. 2. The respondent No.1 was convicted of the offence punishable under Section 138 r/w. Section 142 of N.I. Act, 1881 and sentenced to undergo S.I. for a period of six months in addition to payment of compensation to the complainant in Criminal Case No.505/OA/00/C vide judgment and order dated 23.12.2005 passed by the learned J.M.F.C., Panaji. Subject matter of this criminal case is the dishonour of two cheques dated 03.04.2000 for Rs.2,07,500/- and Rs.1,33,300/- issued towards discharge of the loan amount of Rs.3,40,800/- taken by the accused in the year 1997 i.e. on 16.1.1997 and 15.5.1997 and failure of the accused to make good the payment under the said cheques in response to the demand made therefor. The learned J.M.F.C., Panaji rejected the defence of simplicitor denial and proceeded to convict the respondent No.1/ accused with the observation that the respondent No.1 / accused had failed to rebut the presumption arising out of section 139 of the N.I. Act,1881. Conviction of the respondent No.1/ accused was overturned by the First Appellate Court - Ad hoc Assistant Sessions Judge-II, Panaji in Criminal Appeal No.2/2006 preferred by the respondent No.1/ accused against the said judgment and order passed by the learned JMFC, Panaji. It was specifically 3 contended before the First Appellate Court on behalf of the respondent No.1/ accused that the cheques were issued in respect of liability which was not legally enforceable for the reason of the debt becoming time barred at the time of presentation of the cheques for encashment and, therefore, penal provisions of Section 138 of N.I. Act,1881 were not attracted. The First Appellate Court upheld this contention and acquitted the respondent No.1/ accused of the offence punishable under Section 138 of the N.I. Act, 1881. 3. Now in the present appeal preferred against the judgment and order of the First Appellate Court the appellant is now struggling to adduce in evidence a copy of the receipt as well as letter dated 24.03.2000 allegedly issued by the respondent No.1/ accused in order to reveal the fact of acknowledgment of liability/ debt by the respondent No.1 / accused in writing, a saving device under Section 19 of Limitation Act. According to the appellant, the said documents were discovered in the file collected from the Trial Court Advocate while the case was being discussed with the Appellate Court Lawyer in the present appeal on 03.02.2007, and he was not aware of the reason as to why the said documents were not produced in the Trial Court. The appellant submits that he made enquiry with his Trial 4 Court Advocate regarding non-production of the said documents in the Courts below, and in response to such enquiry, he could obtain information from his Advocate in the Courts below that under bonafide belief that the cheque was a sufficient document in writing to prove the debt, the same was not produced before the Trial Court and the First Appellate Court vide letter dated 12.02.2007 addressed by Advocate Umesh Rao. These documents, the appellant submits, are necessary to enable the Court to arrive at a correct finding and to prevent failure of justice in the present case. 4. The respondent No.1/ accused has resisted this application with reply dated 20/08/2009. According to respondent No.1/ accused the application has been moved malafidely to produce on record fraudulently manufactured documents and there are no valid reasons for non-production of the same at an earlier stage; and as such the move for production of documents is an afterthought calculated to wriggle out of adverse situation. It is also contended by the respondent No.1/ accused that the originals of the documents sought to be produced in evidence are not with the appellant and, therefore, an application for leading secondary evidence has been moved by the appellant in the Special Civil Suit 5 No.26/2003/C pending before the CJSD, Mapusa, Goa in respect of the said cheques. 5. Ld. Advocate Lawande for the appellant submits that the contentious issue regarding the enforceability of the debt was for the first time raised before the First Appellate Court; and in the light of the divergent judicial views on this legal issue, the Advocate conducting the trial as well as arguing the case before the First Appellate Court - Advocate Umesh Rao continued to have confidence in the presumptive value of the cheque regarding existence of the debt and as such he did not produce the said documents either before the Trial Court or before the First Appellate Court. In his view, the only consideration that should weigh in the matter of such kind, is the necessity of adducing such evidence for rendering complete justice in the matter; and, therefore, the documents evincing the acknowledgment of liability in writing given by the respondent No.1/ accused become necessary for rendering justice. In support of his submission, he placed reliance on the judgments reported in 2002 Bombay Cases Reporter (CPF 559); Sitaram Rangappa Kaushik Vs. Ugandh Bhika Jadhav and Anr. and AIR 2001 SC 2120; Rambhau and Others Vs.State of Maharashtra. 6 6. Learned Advocate N. Sardessai for the respondent No.1 / accused referred to unamended para No.5 of the plaint lodged for the institution of the Special Civil Suit No.26/2003/C for the recovery of monetary claim arising out the said cheques in the Court of CJSD, Mapusa, Goa and pointed out therefrom that initially the appellant/ plaintiff had come up with the case that the two post dated cheques in question were issued on 15th May, 1997 and this stood in stark contrast with the contents of the letter dated 24.03.2000, which purported to reveal the issuance of cheque in or about the date of the letter i.e. 24.03.2000. This fact itself, he argued, is sufficient to reveal the true nature of the letter dated 24.03.2000. According to him, the documents sought to be adduced in evidence i.e. letter 24.03.2000 and the receipt dated 15.05.1997 are got up documents manufactured to make out a false case of acknowledgment of debt in writing by the respondent No.1 / accused. However, a fact remains that there has been amendment to the plaint effecting substitution of the date 15.05.1997 with the date 24.03.2000. This, learned Advocate N. Sardessai for the respondent No.1 / accused, argued is nothing but an afterthought. Submissions of the learned Advocate N. Sardessai in fact prompt a comment on the genuineness of the said documents, which in the considered 7 opinion of this Court is not warranted at this stage when the complete evidence as regards the said documents has not been recorded. Issue before this Court is limited to the question as to whether judicial propriety demands a look into the said documents for the purposes of weighing them in judicial scales for doing justice or not. 7. In this context, learned Advocate N. Sardessai further argued that there is no legal necessity for bringing any such evidence as the case of acknowledgment of debt in writing was not pleaded by the appellant/ complainant in his complaint. 'Complaint' as defined under Section 2(d) of Cr.P.C., 1973 means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person whether known or unknown has committed an offence, but does not include a police report. A Magistrate to whom any such complaint is made of which he is authorised to take cognizance or which has been made over to him under Section 192 may either postpone the issue of process against the accused and order enquiry into case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for purpose of deciding whether or not there is sufficient ground for proceeding, or if in the opinion of the Magistrate taking 8 cognizance of an offence, there is sufficient ground for proceeding, he shall either issue a summons or warrant for the attendance of the accused. Action is thus, commenced under law against the accused person upon any such complaint. Suffice it to say that all that was necessary for setting law in motion was incorporated in the complaint in the present case. 8. For the first time before the First Appellate Court, the record reveals, the issue regarding legal enforceability of the liability arising out of time barred debt was raised. The record also reveals that the Ld. Advocate Umesh Rao representing the appellant/ complainant did not move the Appellate Court for granting leave to adduce the said documentary evidence for meeting the contention of 'time barred debt'. In this context, some passages from Zahira's case (AIR 2004 SC 346; Zahira Habibulla S. Sheikh and Anr. Vs. State of Gujarat and Ors.) cited on behalf of the respondent No.1 / accused for the purpose of revealing judicial wisdom can be quoted hereunder gainfully. “21. Section 391 of the Code is intended to sub- serve the ends of justice by arriving at the truth and there is no question of filling of any lacuna in the case on hand. The provision though a 9 discretionary one is hedged with the condition about the requirement to record reasons...... 51. ........ A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial (in the present case the complainant's Advocate) either in producing relevant materials or in eliciting relevant answers from the witnesses. The adage ' to err is human' is recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during conducting of a case cannot be understood as a lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in the trial could be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” 10 9. In the instant case by lodging a complaint as envisaged under Section 2(d) of the Code of Cr. P., 1973 the action under law against the respondent No.1/ accused was lawfully set in motion. Steps taken to correct errors in prosecution of the such complaint, may be upon the wisdom dawned belatedly, need not, in light of the Hon'ble Apex Court's observations as aforesaid, be thwarted at the very inception. Production of documents is one thing and its probative value the other. Shutting up of the relevant documents would only mean shutting the passage to the truth so essential to shed light on the issues involved. Evidently, the documents are relevant to the matter in issue and, therefore, their interpretation in the evidence subject to its probative value becomes necessary. 10. Ld. Advocate Nitin Sardessai further submitted that bonafides of the appellant/ complainant in moving the present application are doubtful in as much as the fact of ignorance as on 03.02.2007 as to why the said documents were not produced in trial Court is a suspect in light of pleading in para. 4 of the application for amendment of the plaint dated 15.06.2007 in Special Civil Suit No.26/2003/C. Opening sentence of the said para which according to Ld. Advocate Sardessai for the respondent No.1 / accused throws 11 light on the 'bonafides', is quoted hereunder for ready reference : “para 4 - Though the said letter was in the records of the plaintiff, on the bonafide belief of the advice of the Advocate for the plaintiff, the presumption of cheque being sufficient in favour of the plaintiff the same was not produced. ” 11. Read word by word, this sentence makes no clear sense and rather it confuses the understanding about the facts referred to therein. Ld. Advocate Lawande for the appellant/ complainant submitted that the phrase concerning the bonafide belief needs to be read as “on the bonafide belief of the Advocate for the plaintiff.” This view of the sentence makes a clear sense that Advocate for the plaintiff entertained bonafide belief in the presumption in favour of the plaintiff that the cheque was sufficient and, therefore, the said letter was not produced. Such reading of this sentence is warranted in view of the context it has with the further sequential expression “however, now in view of the necessity, it has been discovered now.” in the considered view of this Court, therefore, the bonafides of the appellant/ complainant need not be doubted. 12. Though the case of Sitaram Rangappa Kaushik 12 along with Rambhau's case (supra) have been cited by the learned Advocate V. A. Lawande for the appellant/ complainant in support of his submissions made on behalf of the appellant/ complainant, Ld. Advocate Nitin Sardessai emphasizing the need for exercise of caution in order to avoid prejudice to the accused in the matter of receiving additional evidence, invited the attention of this Court to the observations made by the Hon'ble Apex Court at Para No.3 in the said case. The relevant observations at para 3 of the said case read as under : “The Apex Court in Rajeshwar Prasad Mishra Vs. State of West Bangal and Anr (cited supra) has laid down : “ Similarly, the Code gives power to the Appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessary. Thus the Code gives power to the Appellate Court to order one or the other, as the circumstances may require, leaving a wide discretion to it to deal appropriately with different cases. Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It 13 must not, however, be received in such a way as to cause prejudice to the accused, as for example, it would not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. ” 13. In the instant case, it can be seen that the case concerns issuance of two cheques against the debt incurred. Introduction of the said documents in evidence explaining the enforceability of the said debt makes no change in the basic nature of the case against the respondent No.1/ accused. Likewise, there need not be any retrial as a result of the said documents being brought in evidence. The requirement of justice as discussed above dictates that the said documents are pivotal in deciding the issue of enforceability of the said debt. No prejudice would, therefore, be caused to the respondent No.1/ accused, if the said documents are received in evidence. 14. In the result, permission to produce the additional evidence needs to be granted in the following terms: (i) Permission is granted to the appellant/ 14 complainant to tender in evidence the said documents i.e. original or copy of the receipt dated 15.05.1997 and letter dated 24.03.2000 in accordance with law. (ii) District and Sessions Judge, Panaji or any other Sessions Judge nominated by him shall record or take the evidence concerning the said documents in accordance with law and shall certify such evidence to this Court within a period of three months. (iii) The parties shall appear before the District and Sessions Judge, Panaji at about 11.00 a.m. on 28.06.2010 and shall attend the proceedings before the District and Sessions Judge, Panaji as directed by him for the purposes of recording the said evidence. (iv) Record and proceedings be sent to the District and Sessions Judge, Panaji for the purpose hereinabove. U. D. SALVI, J. SMA