Ninala Jayasurya, J.

1. The present Criminal Petition is preferred against an Order dated 25.04.2022 passed in Crl.M.P. No. 36 of 2021 in Criminal Appeal No. 24 of 2021 on the file of the Court of III Additional Sessions Judge, Rajampet, Kadapa District.

2. Heard Mr. Y. Srinivasa Murthy, learned Senior Counsel appearing for the petitioner and Mr. Balaji Medamalli for respondent No. 1 and learned Assistant Public Prosecutor for respondent No. 2.

3. The petitioner herein is the accused in C.C. No. 31 of 2019 on the file of the Court of Judicial Magistrate of I Class, Railway Koduru. Pursuant to the complaint lodged by the 1st respondent herein, the petitioner was charged with the offence under Section 138 r/w 142 of Negotiable Instruments Act. The learned Magistrate vide Judgment dated 22.04.2021, convicted the petitioner after a full-fledged trial and sentenced him inter alia to undergo imprisonment for a period of one year while awarding compensation of Rs. 10,00,000/- to the complainant/1st respondent.

4. Aggrieved by the same, the petitioner/accused preferred an appeal in Criminal Appeal No. 24 of 2021 before the learned III Additional Sessions Judge, Rajampet, Kadapa District. In the said appeal, the petitioner moved a petition i.e., Crl.M.P. No. 36 of 2021 under Section 391 of Code of Criminal Procedure (for short 'Cr.P.C.') to permit him to produce documents i.e., a copy of bank statement as additional evidence. The 1st respondent/complainant opposed the said petition by filing a counter. The learned appellate Court by its Order dated 25.04.2022 dismissed the same. Seeking to quash the said Order, the present Criminal Petition came to be filed.

5. The learned Senior Counsel, inter alia submits that three post dated cheques dated 13.08.2018 were alleged to have been issued by the petitioner/accused towards discharge of amount allegedly borrowed from the 1st respondent/complainant and to disprove the case of the 1st respondent/complainant, a copy of the bank statement for the period from 01.04.2011 to 31.03.2012 was filed and the same was sought to be received as additional evidence. He submits that if the said statement is taken into account, outcome of the case would be changed. While submitting that the petitioner/accused could not file the said statement before the learned Magistrate as the same could not be secured at the relevant point of time, the learned counsel would urge that non-filing of bank statement is neither willful nor wanton and in exercise of the powers conferred under Section 391 of Cr.P.C., the learned appellate Court ought to have allowed the petition. Stating that 391 of Cr.P.C., is akin to Order 41, Rule 27 of Cr.P.C., the learned counsel would contend that in fact, a fair consideration of Section 391 of Cr.P.C., would go to show that for the purpose of receiving additional evidence in a Criminal case, the applicant/petitioner need not establish that despite exercise of due diligence, he could not produce the additional evidence before the Order against him was passed. The learned Senior Counsel contends that in the present case, the appellate Court failed to record the reasons as to why the additional evidence sought to be marked was not necessary. He would also further contend that the learned appellate Court committed a grievous error in taking up the Miscellaneous Petition and disposing it of independently through the impugned Order. In other words, it is his submission that the lower appellate Court is required to dispose of the petition to receive additional evidence along with the main appeal. The learned counsel would also contend that the appellate Court failed to exercise jurisdiction vested in it and its approach is contrary to the well settled principles of law, that to meet the ends of justice the learned appellate Court ought to have allowed the application in question. He further submits that throwing out the evidence at the threshold is contrary to law and the Order under challenge is liable to be set aside on that ground. In support of his contentions, the learned counsel placed reliance on the judgment rendered by Hon'ble Supreme Court in Rambhau and Another v. State of Maharashtra (2001) 4 SCC 759 [LQ/SC/2001/1122] and Pramod Gupta v. State of Madhya Pradesh and Others 2013 Law Suit (MP) 561 etc.,

6. The learned counsel for the 1st respondent/complainant, on the other hand, supported the Order passed by the learned appellate Court, inter alia contending that there is no perversity or procedural irregularity in the Order and that the same warrants no interference by this Court. He submits that the learned appellate Court reserved the matter for judgment on 20.04.2022, after hearing the parties including the petition seeking permission to adduce additional evidence. He submits that the learned appellate Court felt it not necessary to receive the additional evidence and therefore, dismissed the application to receive the additional evidence by the impugned Order dated 25.04.2022 and posted the matter for judgment in the main appeal and at that stage, the petitioner/accused filed another application Crl.M.P. No. 28 of 2022 to reopen the matter and the same was allowed to enable the petitioner/accused to advance further arguments, if any.

7. While drawing the attention of this Court to the relevant averments in the counter before the appellate Court, the learned counsel would submit that the purpose for which the document sought to be received as additional evidence is not mentioned in the petition and intention of the petitioner/accused is to improve his case. The learned counsel would also submit that the petitioner did not enter into the witness box and categorically stated in the Trial Court that he has no evidence. The learned counsel further submits that as the application in question was taken up along with the appeal, it cannot be contended that it was decided in isolation i.e., independently that of the appeal.

8. The learned counsel submits that the power to receive additional evidence has to be exercised only in exceptional cases and in the present case, the learned appellate Court by assigning cogent reasons, dismissed the petition as it felt not necessary to receive additional evidence. Placing reliance on the decisions reported in Rajvinder Singh v. State of Haryana (2016) 14 SCC 671, [LQ/SC/2015/1445] K.A. Prakash Rao v. U. Indira Devi and others 2006 (2) ALD (Crl.) 402 (AP), Dasari Radha Krishna v. State of Andhra Pradesh 2010 (1) ALD (Crl.) 1001 (AP) and G. Venkateshwar Rao v. V. Neelima and Another 2015 (2) ALD (Crl.) 271, [LQ/APHC/2015/29] the learned counsel seeks dismissal of the Criminal Petition.

9. Refuting the said contentions, in reply, the learned Senior Counsel submits that the very fact that the judgment in the appeal is not ready, would make it clear that the application in question was dealt with separately and the decision in respect of the same independent of the appeal is not sustainable. In any event, the learned Senior Counsel submits that for rendering substantial justice, the appellate Court ought to have allowed the application in question instead of dismissing the same. Accordingly, the learned counsel seeks to allow the Criminal Petition by setting aside the impugned Order.

10. On a consideration of the rival contentions, the point that falls for adjudication by this Court is:

Whether the Order of the appellate Court warrants interference by exercise of powers under Section 482 of Cr.P.C., in the facts and circumstances of the case

11. Section 391 of Cr.P.C., which is relevant in the context of the contentions advanced, may be extracted for ready reference:

"391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

12. A reading of the above provision of law would go to show that the appellate Court, if it thinks that the additional evidence is necessary for consideration of the matter at the stage of appeal, by recording reasons may either take such evidence itself or direct it to be taken by a Magistrate or if the appellate Court is a High Court, by a Court of Sessions or a Magistrate.

13. In Rambhau's case, cited supra, an Order of acquittal for the offences punishable under Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act was reversed by the High Court and the matter was carried by way of appeal. The High Court conducted additional examination of the accused persons, as it felt that the same is necessary to rectify an irregularity which was pointed out by the defence. The Hon'ble Supreme Court while stating that on an analysis of the Civil Procedure Code, Section 391 is akin to Order 41, Rule 27 of C.P.C., further opined that the purpose of introduction of Section 391 (earlier Section 428) in the statute book has been for the purpose of making it available to the Court, not to fill up any gap in the prosecution case, but to oversee that the concept of justice does not suffer. The Hon'ble Supreme Court in the attending facts and circumstances upheld the decision of the High Court.

14. In Zahira Habibulla H. Sheikh and Another (2004) 4 SCC 158, [LQ/SC/2004/509] popularly known as Best Bakery case, the Hon'ble Supreme Court had an occasion to deal with Section 391 of Cr.P.C., in an appeal filed against the judgment of Gujarat High Court upholding the acquittal of the accused by the Trial Court. The High Court also rejected the application filed by the State for adducing additional evidence under Section 391 of Cr.P.C., and/or for directing the retrial. Zahira who claims to be an eye witness to the incident of killings, after completion of trial and judgment by the Trial Court, made statements and filed affidavits alleging that during trial she was forced to depose falsely and turned hostile on account of threats and coercion. She requested for a fresh trial. The Hon'ble Supreme Court after detailed analysis of the matter, inter alia, allowed the appeal filed by Zahira and ordered for a retrial. The Hon'ble Apex Court in the context of Section 391 of Cr.P.C., opined as follows:

"47............... Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of a guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.

48. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391.

49. ............. If the appellate court thinks that it is necessary in the interest of justice to take additional evidence, it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of discretion of the appellate court.........."

15. In Ashok Tshering Bhutia v. State of Sikkim (2011) 4 SCC 402, [LQ/SC/2011/325] the Hon'ble Supreme Court was dealing with an appeal against an order of conviction as upheld by the High Court for the offences punishable under Section 13(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988. The High Court initially, allowed the appeal and remitted the matter to the Trial Court by an Order dated 27.09.2002, giving an opportunity to the prosecution to prove the documents, with a further direction to the Trial Court to send the file back to the High Court after completing that formality. The Special Judge after considering the matter, issued summons to 12 witnesses on the side of prosecution and as it failed to prove the documents, on which reliance is placed, referred the matter back to the High Court pursuant to which the arguments were heard by the High Court and appeal was dismissed. In the said case, the Hon'ble Supreme Court dealing with the aspect of additional evidence, at Para 28 held as follows:

"Additional evidence at the 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 interests 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."

16. The Hon'ble Supreme Court at Para No. 32 further held that the additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest, and that generally, such power is exercised to have formal proof of the documents etc., just to meet the ends of justice. The Hon'ble Apex Court also held that the provisions of Section 391 Cr.P.C., cannot be pressed into service in order to fill up lacunae in the prosecution case. Accordingly, the Hon'ble Apex Court allowed the appeal by setting aside the Order passed by the High Court upholding the Order of the Special Judge.

17. Rajeswara Prasad Mishra v. The State of West Bengal AIR 1965 SC 1887 [LQ/SC/1965/167] , is a case wherein, the Order of Conviction reversing acquittal for the offence under Section 409 of the IPC was under challenge. The High Court by taking into consideration the additional evidence, set aside the order of the Magistrate. The Hon'ble Supreme Court, at Para No. 9 of the said Judgment, inter alia, observed that-

"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 must 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 must, of course, not be received in such a way as to cause prejudice to the accused as for example, it should 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 requirement of justice dictate otherwise".

18. The Hon'ble Supreme Court, upheld the Order of the High Court, in the facts and circumstances of the case.

19. In Anil Sharma and Others v. State of Jharkhand (2004) 5 SCC 679, [LQ/SC/2004/649] the appellant before the Hon'ble Supreme Court was sentenced to death for the offences punishable under Sections 147, 148, 149, 326, 307 r/w 34, 452 r/w 34 and 302 r/w 34 of IPC. The High Court upheld the conviction, however altered the sentence of death imposed on the appellant to life imprisonment. Against the said order, the matter was carried to Hon'ble Supreme Court and it would appear that a ground was raised that the High Court went wrong in dismissing the application for adducing evidence to substantiate the appellants' claim of innocence. The Hon'ble Apex Court while opining that whenever any such application is filed before the Court, acceptability of the prayer in question is to be objectively considered. However, upheld the conclusions as arrived at by the High Court for rejecting the application made by the appellants.

20. In Pramod Gupta's case, a learned Judge of High Court of Madhya Pradesh (Gwalior Bench) was dealing with a quash petition, wherein an application filed under Section 391 of Cr.P.C., in a Criminal Appeal was neither allowed nor rejected, but deferred for deciding at the time of final hearing. A contention was raised that Section 391 of Cr.P.C., provides that the application has to be decided before hearing the final arguments of the appeal and therefore, it was prayed that the impugned order be set aside with a direction to decide the application before hearing the appeal finally by the Appellate Court.

21. Referring to Section 391 of Cr.P.C., the learned Judge opined that the whole scheme of Section 391 of Cr.P.C., suggests that like Civil cases, an application for taking additional evidence on record under Section 391 of Cr.P.C., should also be considered and disposed of, after hearing the criminal appeal on merits and such application should not be disposed of in isolation without hearing the appeal on merits, because if such applications are disposed of without hearing the appeal on merits, then there may be cases of failure of justice. The learned Judge opining so, was not inclined to interfere with the Order under challenge in exercise of its power under Section 482 of Cr.P.C.

22. Insofar as the decisions relied on by the learned counsel for the 1st respondent, in Rajvinder Singh's case, the Hon'ble Supreme Court was dealing with an appeal filed by the accused who was convicted and sentenced for the offences under Sections 364, 302 and 201 IPC, which was confirmed in appeal by the High Court of Punjab & Haryana. During pendency of appeal before the High Court, the appellant/accused filed an application under Section 391 of Cr.P.C., praying that additional evidence be recorded and the High Court directed that the said application be considered along with the appeal itself. Subsequently, the High Court dismissed the appeal and as regards application under Section 391 of Cr.P.C., it was observed that it was imperative for the appellant/accused to have examined the expert in his defence at the Trial Court stage itself and the report of the privately engaged forensic expert at such belated stage could not be allowed to be taken on record. The Hon'ble Supreme Court dismissed the appeal, inter alia holding that the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage.

23. In G. Venkateshwar Rao's case, a learned Judge of the erstwhile common High Court for the State of Telangana and for the State of Andhra Pradesh at Hyderabad was dealing with a matter wherein an application filed under Section 391 of Cr.P.C., in an appeal filed by the appellant against the Order of conviction for the offence under Section 138 of Negotiable Instrument Act. The complainant sought permission to examine the Bank Manager and adduce additional evidence. Opposing the said petition, a contention was raised that the evidence which was sought to be let-in was very much within the knowledge of the petitioner/complainant, but during the trial, no steps were taken to examine the Bank Manager at the relevant time and hence the petitioner cannot let-in new evidence to fill up the lacunae, which is impermissible in Law. The learned Judge referring to the decision of the Hon'ble Supreme Court in Rambhau's case cited supra, while opining that the petitioner/complainant was conscious of the fact that the evidence of the Branch Manager or some other employee of the Bank is essential, did not examine the said witnesses at the right opportune time and the petition under Section 391 of Cr.P.C., is nothing but an effort to fill up the lacuna. Making the said observations, the learned Judge dismissed the quash petition.

24. In Dasari Radha Krishna's case, a petition under Section 391 of Cr.P.C., seeking permission to lead additional evidence by way of examining Branch Manager, Andhra Bank was dismissed. To prove that the cheque in question was drawn on account of partnership firm, the petitioner wanted to examine the Branch Manager, Andhra Bank as additional witness in the appeal. The learned Judge of the High Court rejecting the plea that it is a pure question of law which can be raised in the appeal, inter alia, opined that the petitioner/accused wants to examine additional witness to prove facts required for the said plea itself indicates that it is not a pure question of law and it is undoubtedly mixed question of fact and Law. The learned Judge, further held that no party can be permitted to raise a mixed question of fact and law for the first time in appeal. The learned Judge further held that when such a plea cannot be raised by the petitioner/appellant for the first time in the appeal, the question of permitting the petitioner to lead additional evidence in the appeal by way of examining the witness and marking certain documents in support of that plea, does not arise at all. The learned Judge ultimately upheld the Order passed by the Appellate Court and dismissed the quash petition.

25. In K.A. Prakash Rao's case, the appellant/complainant aggrieved by the Orders of the learned III Additional Metropolitan Sessions Judge, Hyderabad, in setting aside the order of conviction, carried the matter by way of appeal. The appellant/complainant in the appeal moved a miscellaneous petition under Section 391(1) of Cr.P.C., to receive the documents as additional evidence, inter alia, on the premise that the same could not be produced before the Trial Court as they were with a mediator. The learned Judge while observing that the appellant/complainant was examined as a witness before the Trial Court as P.W. 1, nowhere stated on oath that two documents were in the custody of mediator and that for the said reasons was not able to produce them before the Trial Court held that he cannot be permitted to introduce the documents at the appellate stage and dismissed the application.

26. The contentions advanced by the learned counsel for both sides have been considered in the light of the above said decisions, with reference to the facts of the present case. There is no dispute with regard to the expressions of the Hon'ble Supreme Court in the decisions relied on by the learned counsel for the petitioner, the purport of which is that the Appellate Court in exercise of its powers under Section 391 of Cr.P.C., can receive additional evidence in exceptional cases and for rendering substantial justice. Further, if the attempt is to fill up the lacunae in evidence, no additional evidence can be received at the appellate stage. As held by the Hon'ble Supreme Court in Anil Sharma's case, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. In the present case, the petitioner/accused sought to mark his bank account statement from 01.04.2011 to 31.03.2012, inter alia, on the premise that he could not file the same due to inadvertence and on unseemly advice and suffering with lack of knowledge relating to production of the documents. Such a plea cannot be appreciated nor the additional evidence can be received, more particularly, in view of the fact that the petitioner did not chose to examine himself in support of his defence and as seen from the counter-affidavit, he had reported no defence witnesses. In this context, it may be appropriate to extract the relevant portion of counter filed on behalf of the respondent/complainant which reads thus:

"5. It is relevant to submit that the petitioner/appellant had full opportunity to raise his defence available during the trial. The petitioner did not give reply to the statutory notice prior to filing of the case. The appellant neither raised this defence during examination under Section 251 of Cr.P.C., nor when statement of the petitioner recorded under Section 313 of Cr.P.C. Moreover the petitioner categorically stated that he does not want to examine himself in support of his defence and reported no defence witness despite ample opportunity was given. As such, the petitioner has no bona fides to file present application for filing additional evidence."

27. From the record, it appears that no evidence was adduced during the course of trial as the petitioner/accused did not choose to adduce any evidence. The question of adducing additional evidence, would arise only in the event of the petitioner/accused adducing any evidence during trial. It is not his case that he could not adduce evidence for the reasons beyond his control or he was threatened/forced not to adduce any evidence. Under the said circumstances, rejection of the application filed by the petitioner/accused, though on a different ground by the learned Appellate Court by exercising it's discretion, cannot be found fault with.

28. Insofar as the contention raised by the learned Senior Counsel that the Appellate Court went wrong in dismissing the application, without considering the same along with the appeal on the same analogy of Order 41, Rule 27 of Code of Civil Procedure (for short 'C.P.C.'), it is pertinent to mention that as seen from the docket proceedings, it would appear that the arguments in the matter were heard on different dates and reserved for judgment on 20.04.2022. On 25.04.2022, the learned Appellate Court, dismissed the Criminal Miscellaneous Petition No. 36 of 2021 by a separate order. However, not pronounced the judgment in the appeal as the same was not ready. It is not the case of the petitioner/accused that the miscellaneous application seeking to receive the additional evidence was not heard along with the appeal. The learned Appellate Court had merely dismissed the miscellaneous petition by a separate Order and it would not amount to dealing with the same in isolation as sought to be contended. The learned Appellate Court having considered the application under Section 391 of Cr.P.C., and having come to a conclusion that there are no merits in the application, dismissed the same and on a plain reading of Section 391 of Cr.P.C., it cannot be construed that such an application cannot be disposed of by an independent Order, even if the contention that such an application shall be dealt with along with the appeal on the analogy of Order 41, Rule 27 of C.P.C., is accepted.

29. In view of the afore said conclusions, the contentions advanced on behalf of the petitioner are rejected.

30. At this juncture, it may also be apposite to refer to the opinion of the Hon'ble Supreme Court in Asim @ Munmun @ Asif Abdulkarim Solanki v. State of Gujarat 2020 Law Suit (SC) 914, which reads thus:

"Section 391 of the Cr.P.C., does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Section 391 should be heard immediately after it is filed without waiting for the appeal to be finally heard."

31. In the light of the above factual and legal position, this Court is of the considered opinion that the Order under challenge warrants no interference by this Court in exercise of powers under Section 482 of Cr.P.C.

32. Accordingly, the Criminal Petition is dismissed. Miscellaneous Petitions, if any, pending in this Criminal Petition shall stand closed.