1 Cri.W.P.No.521/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.521 OF 2011 Anil s/o Madhukarrao Onkar, Age 51 years, Occ. Business, R/o Onkar Furniture & General Appliances, First Floor, Dhanshree Complex, Near Hotel Hardev, Sitabardi, Nagpur ... PETITIONER VERSUS 1. The State of Maharashtra (Copy to be served on the Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad). 2. Dr. Sapna w/o Anurag Jain, Age 35 years, Occu. Medical Practitioner, R/o “Samarpan”, Opp. Nandadeep Society, Padampura, Aurangabad) ... RESPONDENTS ..... Shri S.K. Kulkarni, Advocate holding for Shri V.P. Golewar, Advocate for the petitioner Shri N.H. Borade, A.P.P. for respondent No.1. Dr. Sapna w/o Anurag Jain, respondent No.2 in person ..... CORAM : U.D. SALVI, J. DATED : 11th & 14th November, 2011. PER COURT : 1. The petitioner is seeking reversal of the order dated 14.6.2011, passed by learned Additional District & Sessions Judge, 2 Cri.W.P.No.521/2011 Aurangabad, rejecting the prayer for permission to produce the documents and adduce additional evidence in Criminal Appeal No. 181/2007. 2. The respondent No.2, a medical practitioner, lodged Criminal Complaint No.322/2006 under Section 138 of the Negotiable Instruments Act against the petitioner in the Court of the Judicial Magistrate, First Class, Aurangabad. She alleged that in response to her order, the petitioner/ accused had supplied items of hospital furniture which were not as per the specifications and, therefore, she had rejected the said goods supplied to her on 20.9.2005. She further alleged in the complaint that the accused had issued cheque of Rs.98,000/-, dated 25.10.2005 in her favour towards the value of the rejected goods, advances given and cost of the repairs; and the said cheque was dishonoured and returned to her with the Banker’s memo dated 22.11.2005 with a remark that the same was returned unpaid on account of “Stop payment”; and the petitioner/ accused, instead of complying with her demand notice dated 8.12.2005, had given a reply to escape from the liability arising out of the said cheque. 3. The respondent No.2 examined herself and was cross- examined at length. The petitioner/ accused was examined as per 3 Cri.W.P.No.521/2011 the provisions of Section 313 of the Criminal Procedure Code. Besides controverting the case of the complainant, he revealed in his examination that he had issued the said cheque in lieu of 10 items/ goods which were agreed to be returned by the respondent No.2/ complainant. According to him, he had supplied 11 items to the respondent No.2/ as per her order and Vaman chair was returned by the respondent No.2/ complainant at the very initial stage of supply and she had not paid the price of the said goods at that time. He further disclosed in his statement that he went to Aurangabad and in talks with the respondent No.2/ complainant it was agreed that she was to return 10 items and in lieu of that, he would be giving Rs.98,000/- and she was to pay Rs.1,28,000/- and she had only returned three things and was to return 6 items and as those items were not returned, she had stopped payment of the said cheque. At the time of his examination, he disclosed that he was not to examine himself or any witness for adducing evidence on his behalf. 4. Learned trial Court, after hearing the parties and upon considering the evidence adduced before it, convicted the petitioner/ accused of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer S.I. for 4 Cri.W.P.No.521/2011 six months and to pay compensation of Rs.1 Lakh to the complainant/ respondent No.2. 5. The petitioner thereafter preferred the Criminal Appeal No.181/2007 against the said judgment and order of conviction before the Sessions Court at Aurangabad. It appears that, only after the respondent No.2/ complainant had tendered her written arguments, the application under Section 391 of the Criminal Procedure Code, seeking permission to adduce additional evidence came to be filed on 22.3.2011. The petitioner – appellant in Criminal Appeal No.281/2007 pleaded before the Sessions Court that the document sought to be produced along with the list of documents enclosed with the said application were handed over to his Advocate, but the same were not produced before the Court on his advice despite the fact that the said documents are relevant and material for the purposes of adjudication in the present case and if the same are not taken on record, she will suffer great irreparable loss. This application was resisted by the respondent No.2 with the say dated 22.3.2011. According to the respondent No.2, the documents are being produced at very belated stage as a result of afterthought and with purpose to delay the execution of the sentence. In her view, the said documents are irrelevant and the reason given for its non production i.e. wrong advice given by the 5 Cri.W.P.No.521/2011 Advocate is not tenable and as such, is the gross misuse of Section 391 of the Code of Criminal Procedure. She further voiced the possibility of the use of forged documents by the petitioner in order to misled the Court. 6. Learned appellate Court, after hearing the parties and upon considering the rival contentions, as disclosed through the rival pleadings, rejected the said application with the following observations : “In fact all these documents ought to have been produced before trial Court and appellant could have adduced his evidence also. But when that opportunity was available to him, appellant could have insisted his Advocate to produce those documents and he could have adduced his evidence, but he did not take steps at proper time. Even in this appeal he could not have produced documents earlier, but again he did not produce and now he is blaming his Advocate. Hence, because of these facts and when appeal is for hearing, at belated stage, this application cannot be allowed.” 7. From the reading of these observations, it is not difficult to see that “belated stage” weighed more than anything else in the mind of the learned trial Court. Learned trial Court found that the petitioner was blaming his Advocate out of belated wisdom though he could have insisted upon his Advocate to produce those documents earlier. 6 Cri.W.P.No.521/2011 8. According to Mr. S.K. Kulkarni, the learned Advocate for the petitioner, the petitioner intends to produce and adduce evidence in respect of documents at Sr.Nos.14, 17, 22, 24, 27 and 28 in the list of documents dated 22.3.2011 annexed to the application in question i.e. more particularly, original receipt of payment of Rs.20,000/- by the respondent No.2, office copy of the letter dated 14.11.2005 issued by the appellant to the respondent No.2 with acknowledgement and its receipt, office copy of the complaint lodged with Dhantoli Police Station against respondent No.2 dated 13/16.1.2006, office copy of the complaint lodged by the appellant with Dhantoli Police Station along with F.I.R. No. 141/2006, copies of information supplied by the State Bank of India with Proforma Invoice filled by the respondent No.2 with the Banker and certificate dated 3.3.2010, issued by State Bank of India regarding the sufficiency of balance in the account of the appellant at the material time. 9. The respondent No. 2 in person made submissions on her behalf to resist the move for adducing additional evidence in the said appeal. She submitted that the move to adduce such evidence was designed to delay justice and was an afterthought to push in forged and fabricated documents in th evidence. Adverting 7 Cri.W.P.No.521/2011 to the extract from commentary on Section 391 of Criminal Procedure Code, 1973 annexed to her reply to the petition dated 20.08.2011, she submitted that discretion to take additional evidence ought not to be exercised to fill up gaps or lacunae in the prosecution evidence. The object of the Section is not for the purpose of enabling the prosecution to produce evidence at later stage. The respondent No. 2 in person relied on the Judgment reported in 2008 (12) SCC 481 (K.D. Sharma V. Steel Authority of India Ltd. & Ors) and others to advance an argument that the conduct of the applicant/ accused was not beyond reproach in as much as the applicant/ accused departed from his original defence voiced in his statement under Section 313 of Criminal Procedure Code, 1973 to one given in the synopsis of the petition i.e. the cheque taken as a security for return of the goods sent for modification, and as such, the petition needs to be dismissed in limine. The present petition concerns the issue of permission to adduce an evidence and fact remains that the applicant/ accused is making reference to the documents in respect of which he intends to lead an evidence. His departure from the stand taken in his statement made under Section 313 of Criminal Procedure Code, 1973, would have definite bearing on the worth of the evidence and 8 Cri.W.P.No.521/2011 truth about it. It is hoped that truth would certainly come out in his cross-examination. Rationale in K.D. Sharma’s case (referred supra) is, therefore, not applicable in the present case. 10. At the outset it needs to be mentioned that it is not the prosecution but the accused who is urging for permission to adduce additional evidence for throwing light on the controversy, and if one considers the cardinal principle of law that “let hundred guilty escape but not one innocent person be punished”, one has to adopt liberal view in matters of such kind, particularly when the accused has some thing to tell about the crime. In the instant case, the documents which are sought to be produced in evidence from their very nature appear to be relevant to the matter in issue in the present case. 11. It is true that the said documents were not produced before the trial Court and the petitioner did make a statement that he was not interested in leading any evidence. This would certainly not leave these documents without any blame. However, the pertinent questions – Whether the said documents are genuine or not or whether they have been contrived as a result of afterthought? and such other questions which may arise in the wake of their production can be answered in the course of 9 Cri.W.P.No.521/2011 appreciation of evidence led in that regard. Ultimately, the Justice rides on the evidence, and if the evidence is in-complete or imperfect, it would not be in position to deliver justice to its desired destination. 12. Considering these aspects, the learned appellate Court ought to have granted permission to adduce in evidence the afore said documents. As observed here-in-above, the learned appellate Court was moved more by the stage of proceedings rather than its goal which it has to achieve as the learned appellate Court dispensing justice. At the same time, the protraction of the litigation on account of the dithering stand of the applicant/ accused cannot be ignored, and therefore, the permission needs to be granted with appropriate conditions for ensuring justice to the parties. ORDER I] The order dated 14-06-2011 passed by the Additional District Judge, Aurangabad is set aside. ii] Permission is granted to adduce in evidence i.e. original receipt of payment of Rs. 20,000/- by the respondent No. 2, office copy of the letter dated 14-11-2005 issued by 10 Cri.W.P.No.521/2011 the appellant to the respondent No. 2 with acknowledgment and its receipt, office copy of the complaint lodged with Dhantoli Police Station against respondent No. 2 dated 13/16-1-2006, office copy of the complaint lodged by the appellant with Dhantoli Police Station along with FIR No. 1412006, copies of information supplied by the State Bank of India with proforma Invoice filled by the respondent No. 2 with the Banker and certificate dated 03-03-2010, issued by the State Bank of India regarding the sufficiency of balance in the account of the appellant at the material time and to examine himself - the applicant/ Petitioner, his employee Rupesh Akare and the employee of State Bank of India, Ramdas Peth Branch, Nagpur. iii] Learned Appellate Court shall record the evidence and dispose off the appeal preferably within four months. The petitioner shall deposit balance amount of Rs. 73,000/- (Rs. Seventy three thousand only) in the appellate Court within four weeks. The Petitioner shall pay cost of Rs. 5,000/- (Rs. Five thousand only) to the respondent No. 2. Cost to be deposited in the appellate Court within four weeks. 11 Cri.W.P.No.521/2011 Criminal Writ Petition No. 521/2011 stands disposed off accordingly. ( U.D. SALVI, J. ) fmp/cwp521.11