The High Court · 2025

Petition under Section 528 of B N.S.S' praying that in the circumstances stated in the Memorandum of Grounds of criminal Petition, the High court may Ue pteaseO to stay all further proceedings in Crl ANo 859 of 2017 ' on the file of in"'tti eoOitionrl bistrict Judge, L.B Nagar, K V.RR Dist pending disposal of the above Crl.P. This Petition coming on for hearlng, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri V Venkata Subramanyam ,Advocate for the Petitioner, Sri A Ravinder Reddy' learned Senior Counsel, representing Sri Ch. Venkateshwara Reddy' Advocate for the Respondent No.1 The Court made the following: ORDER THE HON'BLE SMT.JUSTICE TIRUMALA DE\/ EADA CRIMINAL PETITION No.11058 ot 2O2i ORDER This Criminal Petition is filed by the petiti: rer-appellant- accused seeking to quash the order daled 25.07 .2i 25 passed in Crl M P. No 22 of 2023 in Crl.A. No.859 of 2017 by til lll Additional District Judge, L.B. Nagar, R.R. District, filed unde Section 391 Cr.P C., wherein the said petition was dismissed.

2. Heard [t/r. V. Venkata Subramanyam, learr ( d counsel for the petitioner and Sri A Ravinder Reddy, learned Sr nior Counsel, representing Sri Ch. Venkateshwara Reddy, learned r :unsel for the respondent No 1.

3. The case of the petitioner is that the de faL: t complainant has filed a case under Section '138 of the Negotiable r struments Act (for short 'Nl Act') before the trial court against the p,t titioner herein and the trial court has passed judgment of convictir n against the petitioner without going into the material placed on - ,cord and that aggrieved by the said judgment, an appeal is fil ,d before the appellate Court and the said appeal is pending vide C 1 A. No.B59 of 2017 on the file of lll Additional District Judge. ln fl-: said appeal, the petitioner has preferred an application und€,t Section 39'l : I i I I ) 2 EfD.J Cn-P- No,l1050 ol 2025 Cr.P.C., praying the court to receive certain additional evidence. The said application was dismissed. lt is her further case that she along with other partners has verified the account books of their firm for the years from 2012 lo 20't6 and then she noticed the records and cheque books which were maintained by her husband with his own hand-writing and on verification, she could notice the cheque book containing the subject cheques was missing and also after verification of the statement of account, the petitioner came to know that the respondent No. 1 used two cheques and except the said two cheques no other cheque in the cheque book was utilized and that the same was in his custody. Thus, she filed the application under Section 391 Cr.P.C., before the appellate court to receive the said documents as additional evidence, but the same was dismissed by the appellate court. Aggrieved by the said dismissal order, the present criminal petition is filed.

4. Learned counsel for the petitioner has submitted that the order passed by the appellate court is without any merit and that the petitioner wants to put forth these documents as additional evidence, for which the appellate court has to allow the petition under Section 391 Cr.P.C., but the same was dismissed by the appellate court. He further submitted that documents which the petitioner wants to file as 3 TfD J C.l.P. No 11053 ol 2075 additional evidence are very crucial documents and tha ro prejudice would be caused to the respondent No.1 if they are 'eceived as additional evidence. Hence, he prayed this Court to ; rt aside the orders passed by the appellate court and allow the )etitioner to adduce the additional evidence 5 Learned counsel for the respondent No.1 h: s submitted that the CC pertains to the year 2016 and when the rudgment of conviction was rendered by the trial cou( in the year i 017 against the petitioner, she has preferred an appeal in 2017 ancl he matter is still kept pending due to the dilatory tactics played by 1 te petitioner herein. He further submitted that the petitioner is due t I pay legally enforceable debt to the respondent No.1 herein, but st e is evading the same, just by playing dilatory tactics and the preserr t application is filed in 2025 and she wants to further drag on th,: matter. He further submitted that there is no substance in the corr':ntion of the petitioner and that all the documents are already on r: :ord and the prayer made in the application filed under Section 391 ( r.P.C., is not tenable because the said section envisages that the p,r tition can be filed only in certain circumstances which are not mac e out by the petitioner herein. He, therefore, prayed to dismiss the : .,tition. \ 6. Perused the record. -/ 4 ETD,J C.l P. No.l1O5aot2o2s

7. The petitioner herein is the appellant in Crl.A. No.g59 of 2017 she intends to fire certain documents as additionar evidence and the application under Section 391 Cr p.C., was filed before the trial court. For the sake of reference, Section 391 Cr.p.C. is extracted hereunder: ,,39.1. Appellate Court may take further evidence or direct it to be taken. (1) ln deating with any appeat 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 lilagistrate or when the Appe ate 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 hts pleader shalt have the right to be present when the additionat evidence is taken.(4)The taking of evidence under this section shall be subject to the provisions of Chapter XXlll, as if it were an inquiry.,, B. The said section envisages that the additional evidence can be adduced before the appellate court in certain circumstances.

9. The Learned counsel for the petitioner has submitted that the petitioner intends to file certain documents and that no prejudice would be caused to the respondent No.1 it the same are received as 5 ETD,,I C .P, No-llOSa ot 2025 additional evidence and a fair chance has to be 3 ven to the petitioners, but the appellate court has dismisst: I the said application

10. A perusal of the impugned order disclctes that the appellate court has dismissed the petition by relying upc 1a decision in Ashok Tshering Bhutia v. State of Sikkiml, wherei r it was held that if the appellate court considers certain evidence i necessary and is unable to give a correct finding then only it woul I be justified in taking additional evidence under this section. But' t le additional evidence does not mean to fill up the gap in prosecutirl l's case and it can be taken in exceptional circumstances to remove an irregularity where the circumstances so warrant in pt blic interest. Relying upon the said decision, the appellate court tri s dismissed the petition. lt was further observed that it is only the, Celay tactics adopted by the accused

11. ln the present case, the alleged documents t tat are to be filed are also discussed by the appellate court that tht two ledgers sought for production are alleged to have been seize< by the Civil Supplies Department and that if at all the said ledgers lre produced at$his juncture and even if they show the handwriting <r1 the husband t 1zo'r r1+ scc +oz 6 C.l.P. No.1105Aol2o2s ETO,J of the accused, still that is not going to infer anything to say that the complainant was in the custody of the cheques pertaining the accused. The appellate court further observed that even in such circumstances, it cannot be held that the complainant has unlawfully gained the custody of the two cheques. The appellate court ought not to have assumed the things and drawn an adverse inference as against the documents that are proposed to be received in evidence.

12. f he learned counsel for the petitioner has relied upon the decision in Ajitsinh Chehuji Rathod v. State of Gujarat and anotherz, wherein it was held that power to record additional evidence under Section 391 Cr.P.C. should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice.

13. ln Brig. Sukhjeet Singh (Retd) MVC v. TATE of Uttar Pradesh and Ors.3, wherein it was held that: "14. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the ? ! {2024t 4 scc 4s3 AIR Osline 2019 SC 2579 7 ETO,J t) P ,to.1105' ol2025 Appellate Court to secure ends of justice. The scoF ambit of Section 391 Cr.P.C. has come up for consi<k before thrs Court in Rajeswar Prasad Misra v. Sh West Bengal [AlR 1965 SC 1887]. Justice Hiday: speaking for the Bench held that a wide discre' conferred on the Appellate Courts and the ac r evidence may be necessary for a variety of reasons - that additional evidence must be necessary dot becr would be impossible to pronounce judgme r because there would be failure of justice without it. ' : and ration te of .ullah on s itional r held use it

14. Thus in view of the above cited decisions a r d in the light of the above held discussion, the petition needs to tr r allowed by setting aside the impugned order of the appellate courl

15. Accordingly, the Criminal Petition is allowe<l setting aside the order daled 25.07.2025 passed in Crl.M.P. No.2 l of 2023 in Crl.A No.859 of 2017 by the ltl Additionat District Judgr , L B. Nagar, R.R. District and the petition filed by the petitioner und,: Section 391 Cr.P.C., stands allowed and the petitioner is permit.r d to adduce additional evidence. Nliscellaneous Petitions, pending if any, shall star d closed. Sd/, K.BHAVANI SWAMI AqI; STANT REGISTRAR /=-' /iTRUE COPY// tsEcTtoN oFFICER To, Hyderabad.(OUT)

1. The lll Additional District Judge, L.B.Nagar, K.V.RR. I st 2. Two CCs to the Public Prosecutor, High Court for the S1 rte of Telangana at 3. One CC to Sri V. Venkata Subramanyam, Advocate [(] )UCl rg61 4. One CC to Sri Ch. Venkateshwara Reddy, Advocate 1tl 5. Two CD Copies Sa/PR R.- HIGH COURT DATED:1811112025 ORDER GRLP.No.11058 of 2025 t1E ) izi /4' + c,( ' <) [. ..i ._. i 1lt/t * .-.- t-:1 t ALLOWING THE CRIMINAL PETITION grvqn^ Yt- \-d\'45