HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION Nos.147 of 2011 and 4953 of 2011 COMMON ORDER:- The parties to both these petitions are same and having regard to the controversy raised in them, they can be disposed by this common order. 2. The petitioner-Sri Gouse Khan in these two criminal petitions is the accused in C.C.No.438 of 2009 on the file of the Court of IV Additional Chief Metropolitan Magistrate, Hyderabad (trial Court) and the appellant in Crl.A.No.299 of 2010 on the file of the Court of II Additional Metropolitan Sessions Judge (appellate Court). 3. The second respondent-Sardar Khan is the complainant in the aforesaid criminal case and he is the respondent in the above criminal appeal. The offence alleged by him in C.C.No.438 of 2009 against the petitioner herein is the one punishable under Section 138 of the Negotiable Instruments Act(for short ‘the Act’) i.e. a cheque bouncing offence. The trail Court by its judgment dated 13.08.2010 upheld the case of the complainant and convicted him of the said offence and sentenced him to rigorous imprisonment for a period of 1 ½ year and also directed him to pay a compensation of Rs.2,50,000/-. Questioning that judgment of the trial Court the accused filed the above criminal appeal No.299 of 2010. 4. During pendency of the appeal the accused filed a petition i.e. Crl.M.P.No.368 of 2010 for sending a document i.e. Ex.P.1 letter which purports to be a letter of acknowledgment of debt given by him (accused) to a hand writing expert to show that it does not contain his signature and that therefore it is a forged one. Then he also filed Crl.M.P.35 of 2011 seeking leave of the appellate Court to give his own evidence as additional evidence in support of his case. 5. The appellate Court dismissed Crl.M.P.No.368 of 2010 on 30.11.2010. Questioning that order the accused filed Crl.P.No.147 of 2011. This Criminal Petition was dismissed for default on 21.01.2011. Thereafter at the request of the accused the said dismissal order was recalled by this Court in Crl.M.P.2795 of 2011 on 25.03.2011 and the matter has been taken up for disposal on merits. The appellate Court dismissed the other Crl.M.P.No.35 of 2011 on 13.05.2011. Questioning that order the accused filed Crl.P.No.4953 of 2011. Thus both these petitions were heard together and are being disposed of by this common order. 6. The first point which pertains to Crl.P.No.145 of 2011 is whether or not the appellate Court is justified in rejecting the request of the accused for sending Ex.P.1 document to the hand writing expert. The second point is whether the appellate Court is justified in dismissing the additional evidence petition of the accused. 7. Coming to the first point, a perusal of the trial Court judgment would show that the accused examined his cousin one Sri Nawab Khan as D.W.1 to show that Ex.P.1 document does not contain his signature. The trial Court discussed his evidence and rejected his version as not reliable on the ground that he was brought in to support the version of the accused. Thus it can be said that the trial Court gave opportunity to the accused to adduce his evidence to show that Ex.P.1 does not contain his signature and he chose to examine only one witness in support of his defence in that behalf. Ex.P.1 which is said to be the letter addressed by the accused to the complainant admitting the debt was the first document which was marked on behalf of the complainant in the trial and thereafter five more documents were marked. The appellate Court judgment would show that the accused filed an application for sending Ex.P.1 before the trial Court also to send the document to an expert but that was dismissed and the accused did not question that order and allowed the trial Court to pronounce the judgment on the evidence available. 8. What should be noted is that the accused had applied to the trial Court to send Ex.P.1 to expert but became unsuccessful and participated in the further progress of the case and invited the trial Court to pass the judgment which went against him. The appellate Court’s order would also indicate that it did not feel any necessity to send the document to an expert for the reasons recorded by it. The matter is at large before the appellate Court and its findings went against the accused in the said petition. Added to this it appears that the accused did not deny the cheque in question as is evident from the trial Court judgment, but I must add here that it is for the appellate Court to decide that aspect. It should be noted that Section 391(1) Cr.P.C. says that additional evidence can be permitted by an appellate Court if it considers such evidence necessary for deciding the matter and both the courts below found that there was no such necessity having regard to the other evidence before them. In these circumstances I do not see any illegality or infirmity in the order of the appellate Court to interfere with it on the first point. 9. Then even with regard to the second point, the accused did examine his cousin as D.W.1 to support his case before the trial Court and did not choose to give his evidence. In the application before the appellate Court, nothing is mentioned clearly as to what is his defence and for what purpose he wants to give his evidence and why he failed to give his evidence in the trial Court. The accused did not file the depositions of the complainant i.e. P.W.1 and D.W.1 and what is the material gathered in those depositions and what are the points on which he seeks to give clarification by his own evidence and why it is necessary. In para-4 of the additional evidence petition filed before the appellate Court it is stated by the accused that in the evidence of D.W.1 it has come on record that the relationship of landlord and tenant exists between him and the complainant and some rents were not paid by the respondent in the appeal i.e. the complainant. It is mentioned that the accused wants to give evidence on this aspect. The trial Court discussed this aspect and the judgment went against the accused and he failed to give his evidence before the trial Court. It is not clear then for what purpose the accused wants to give his evidence. The conduct of the accused in making such an application before the appellate Court leaves much to be desired on his part. In such circumstances the appellate Court thought it fit not to entertain the petition of the accused for giving his own evidence in the appeal. It is seen from the reasons given in the petition before the appellate Court, the accused has filed this petition and the other petition only to drag on the matter. The appellate Court considered all the aspects and rejected the request of the accused under the second point and there is no reason to interfere with the said order also. 10. Accordingly for the aforesaid reasons, both these Criminal Petitions are dismissed. ___________________________ JUSTICE N. RAVI SHANKAR 5th July 2011 Vjl/CVRK