The appellant in the present case has been convicted of the offence under section 138 Negotiable Instruments Act, 1881. The appellant was prosecuted by the trial court for cheque dishonour amounting rupees 10 lakh issued in favour of the complainant. It is important to note that during the trial the appellant preferred an application before learned trial Court making a plea that his signatures on the disputed check had been forged, and asking that the cheque be sent to a handwriting expert for comparison of the handwriting and signature. The learned trial Court rejected the application and convicted the appellant. The appellant preferred an appeal against conviction order by the trial court before the Principal Sessions Judge, Gandhinagar. During pendency of the appeal, the appellant filed an application under Section 391 Cr.P.C for taking additional evidence at appellate stage and seeking a direction to obtain the opinion of the handwriting expert after comparing the admitted signature of the accused appellant and the signature as appearing on the disputed cheque. Another prayer made in the said application was that the concerned officer from the Post Office should be summoned so as to prove the defence theory that the notice under Section 138 of NI Act was never received by the accused appellant. Such application preferred by the appellant was rejected by the learned Principal Sessions Judge. Against the decision of the Session Court, the appellant approached the High Court by filing the captioned Criminal Misc. Application which was dismissed by the High Court. Aggrieved by the decision of the High Court the appellant approached the Supreme Court by filing a special leave petition before the Apex Court.

Can the party who was not diligent in producing evidence at the trial stage of a criminal case can seek to produce the same in appeal?

The Court observed that “At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court 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.”

The Supreme Court held that there was no requirement for the Appellate Court to have exercised power under Section 391 Cr.P.C for summoning the official from the Post Office and had rightly rejected the application under Section 391 Cr.P.C. The Supreme Court dismissed the appeal stating that it lacks merit.