1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 41970-M of 2007 Date of Decision: 13.10.2009 *** Anil Kumar .. Petitioner Vs. Gopal Mittal .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Vivek Goel, Advocate for the petitioner. Mr. Rahul Chhatwal, Advocate for the respondent. *** ARVIND KUMAR, J. The application of the petitioner-accused to lead additional evidence at the appellate stage, has been dismissed by the Court below. The learned trial court held him guilty for an offence under Section 138 of Negotiable Instruments Act and sentenced him accordingly. When his appeal against the said judgment was pending, he filed an application to lead additional evidence seeking permission of the Court to examine the mother of the complainant with the averments that during evidence it has come that the complainant borrowed such a huge amount from his mother, which was allegedly given to the accused and thus, the examination of mother of complainant is essential. The said plea did not find favour of the appellate Court below and by dint of impugned order, the said application has been dismissed. Having heard learned counsel for the petitioner, this Court is of the considered view that no ground for quashing of the impugned order dated 18.4.2007 is made out. The provisions relating to additional evidence can only be invoked when the Court is satisfied that the evidence sought to be produced is essential for the just and proper adjudication of the case, which, in spite of exercise of due diligence, has been left over and the 2 witness is able to throw light on the case. But it cannot be used as a tool to cover up the lacuna left out during the trial. In the instant case, the tenor of the impugned order suggests that the accused not only, in spite of availing sufficient opportunities, failed to apprise the Court about the witnesses he wanted to produce in his defence, but also failed to submit any satisfactory explanation about the non examination of the mother of the complainant at the time when opportunities to lead defence evidence were granted to him. Even otherwise, this Court is in total agreement with the view taken by the appellate Court below that the evidence sought to be produced by the accused is not relevant since under the Negotiable Instruments Act, the complainant has to prove, inter alia, the legal liability and not the source of payment. Hence, it cannot be said that the approach of the appellate Court below while dismissing the application of the accused is either illegal or perverse. The petition being without any merit is dismissed in limine. (ARVIND KUMAR) JUDGE October 13,2009 Jiten