Virender Negi vs. Surjeet Chauhan Cr. Appeal No. 19 of 2025 Reserved on 04.08.2026 11.08.2026. Present: Mr Srishti Negi, Advocate, vice Mr Vinod Chauhan, Advocate, for the appellant. Mr Ajay Chauhan, Advocate, for the respondent. Cr.MP No. 5667 of 2025 The applicant/appellant has filed the present application under Section 528 read with Section 432 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 to adduce additional evidence. It is asserted that the applicant had filed a complaint against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act), stating that he is a dealer of Ultratech Cement and had a store at Nahan. The respondent purchased 100 bags of cement from him in December 2019 and issued a cheque of ₹36,000/- for the payment of the bags. The cheque was dishonoured. A notice was served upon the respondent, but he failed to pay the amount. Hence, a complaint was filed before the learned Trial Court for taking action against the respondent as per the law. The learned trial Court tried the respondent and 2 convicted him for the commission of an offence punishable under Section 138 of the NI Act. The learned trial Court sentenced the respondent to undergo simple imprisonment for three months, pay a fine of ₹39,000/- (₹36,000/- as the cheque amount and ₹3,000/- as compensation). The respondent filed an appeal, which was allowed, and the judgment and order passed by the learned trial Court were set aside. The complainant/applicant has filed an appeal before this Court. This Court has to determine as to how the applicant was related to Hind Construction, in whose favour the cheque was issued. Therefore, it is essential to produce the certificate of UCO Bank, stating that the applicant is the account holder in the name of Hind Construction and the downloaded copy of the GST registration certificate showing proprietorship of Hind Construction valid from 01.07.2017. The learned Appellate Court had decided the appeal solely on the ground that the applicant had failed to establish his connection to Hind Construction. This defence was never taken by the respondent before the learned trial Court or the Appellate Court. The learned trial Court never 3 demanded any evidence of this fact. The applicant's case should not have been rejected by the learned Appellate Court on this technical ground. Therefore, it was prayed that the present application be allowed and the applicant be permitted to prove the documents on record. 2. The application is opposed by filing a reply taking preliminary objection regarding lack of maintainability, and the application having been filed to abuse the process of the Court at a belated stage. The contents of the application were denied on the merits. It was asserted that the appeal was decided in respondent’s favour as per the law. The applicant is not the payee or the holder of the cheque in due course, and the learned Appellate Court was justified in dismissing the complaint. The applicant cannot be permitted to fill up the lacuna left by him in the complaint. Hence, it was prayed that the present application be dismissed. 3. I have heard Ms Srishti Negi, learned vice counsel representing the applicant and Mr Ajay Chauhan, learned counsel for the respondent. 4 4. Ms Srishti Negi, learned counsel for the applicant, submitted that the question regarding the applicant being the owner of Hind Construction never arose before the learned trial Court. The accused admitted in his statement recorded under Section 313 of CrPC that he had issued the cheque to the applicant. The learned Appellate Court dismissed the complaint on the ground that the applicant had failed to establish his connection to Hind Construction. Therefore, the documents are necessary to establish the connection between the applicant and the payee. No prejudice would be caused to the other side by the production of the documents. Therefore, she prayed that the present application be allowed and the documents be taken on record. 5. Mr Ajay Chauhan, learned counsel for the respondent, submitted that a complaint can only be filed by a payee or the holder of the due course. The applicant was required to prove that he is a payee or holder in due course. He failed to produce any evidence to prove this fact by producing any evidence. The complaint was wrongly allowed by the learned 5 trial Court and the learned Appellate Court was justified in dismissing the complaint. The applicant cannot be permitted to fill up the lacuna left by him in his complaint. Therefore, he prayed that the present application be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in State of Rajasthan v. Asharam, 2023 SCC OnLine SC 423, that Sections 311 and 391 of Cr. P.C. deal with the power of the Court to take additional evidence. Section 311 deals with the trial, while Section 391 deals with the appeal. The Appellate Court can examine the evidence, but it does not possess the wide powers conferred upon the Trial Court. It was observed: “6. Both Sections 311 and 391 of the Cr. P.C. relate to the power of the court to take additional evidence; the former at the stage of trial and before the judgment is pronounced; and the latter at the appellate stage after judgment by the trial court has been pronounced. It may not be totally correct to state that the same considerations would apply to both situations, as there is a 6 difference in the stages. Section 311 of the Cr. P.C. consists of two parts; the first gives power to the court to summon any witness at any stage of inquiry, trial or other proceedings, whether the person is listed as a witness, or is in attendance though not summoned as a witness. Secondly, the trial court has the power to recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. On the other hand, the discretion under Section 391 of the Cr. P.C. should be read as somewhat more restricted in comparison to Section 311 of the Cr. P.C., as the appellate court is dealing with an appeal, after the trial court has come to a conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can examine the evidence in depth and detail, yet it does not possess all the powers of the trial court, as it deals with cases wherein the decision has already been pronounced.” 8. It was laid down in Sukhjeet Singh v. State of U.P., (2019) 16 SCC 712: (2020) 2 SCC (Cri) 434: 2019 SCC OnLine SC 72, that the additional evidence can be taken by the Appellate Court if the evidence is necessary for just determination of the case; however, Section 391 cannot be used for retrial. The order should not be made if the party had sufficient opportunities and had not availed those opportunities. It was observed at page 721: “24. Power to take additional evidence under Section 391 is, thus, with an object to 7 appropriately decide the appeal by the appellate court to secure ends of justice. The scope and ambit of Section 391 CrPC has come up for consideration before this Court in Rajeswar Prasad Misra v. State of W.B. [Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC 1887: (1965) 2 Cri LJ 817] Hidayatullah, J., speaking for the Bench held that a wide discretion is conferred on the appellate courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be a failure of justice without it. The following was laid down in paras 8 and 9: (AIR p. 1892) “8. … Since a wide discretion is conferred on appellate courts, the limits of that court's jurisdiction must obviously be dictated by the exigency of the situation and fair play, and good sense appear to be the only safe guides. There is no doubt some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There, the resemblance ends, and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section. 9. Additional evidence may be necessary for a variety of reasons, which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the legislature has refrained from doing, namely, to control the 8 discretion of the appellate court under certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be a 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 that 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 requirements of justice dictate otherwise.” 25. This Court again, in Rambhau v. State of Maharashtra [Rambhau v. State of Maharashtra, (2001) 4 SCC 759: 2001 SCC (Cri) 812], had noted the power under Section 391 CrPC of the appellate court. The following was stated in paras 1 and 2: (SCC p. 761) 1. There is available a very wide discretion is available in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same… 2. A word of caution, however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way as to cause any prejudice to the accused. It 9 is not a disguise for a retrial or to change the nature of the case against the accused. This Court in Rajeswar Prasad Misra v. State of W.B. [Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC 1887: (1965) 2 Cri LJ 817] in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record, however, that it is the concept of justice which ought to prevail, and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard.” 26. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 CrPC of the appellate court. All powers are conferred on the court to secure the ends of justice. The ultimate object of judicial administration is to secure the ends of justice. The court exists for rendering justice to the people.” (Emphasis supplied) 9. This position was reiterated in State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575: (2019) 4 SCC (Cri) 264: 2018 SCC OnLine SC 2256, and it was held that this power should not be exercised to fill up the gaps by either side, especially to reverse the judgment of the learned Trial Court. It was observed at page 586: “25. The High Court observed that the trial court erred in saying that the accused failed to 10 prove the making of previous complaints against the prosecutrix. While saying so, the High Court referred to certain complaints made against the prosecutrix, including the one allegedly given on 21-7-1997, which were produced by the Bar at the time of arguments. The power conferred under Section 391 CrPC is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section 391 CrPC. Any material produced before the appellate court to fill in the gaps by either side cannot be considered by the appellate court; more so, to reverse the judgment of the trial court.” 10. Similarly, it was held in H.N. Jagadeesh v. R. Rajeshwari, (2019) 16 SCC 730: (2020) 2 SCC (Cri) 450: (2020) 2 SCC (Civ) 758: 2017 SCC OnLine SC 1813, that where the complainant had failed to produce the notice before the learned Trial Court, he could not be permitted to lead the evidence before the learned Appellate Court to prove it. It was observed at page 731: “6. We are unable to agree with this approach of the High Court, in the facts of this case, which is inappropriate in law. The service of the statutory notice calling upon the drawer of the cheque (after it has been disowned) to pay the amount of the cheque is a necessary precondition for filing the complaint under Section 138 of the Act. Therefore, it was incumbent upon the respondent to produce the said statutory notice on record to prove 11 the same as well. In this case, this document was not even filed by the respondent along with the complaint, and the question of proving the same was, therefore, a far cry. In a case like this, we fail to understand how the aforesaid omission on the part of the respondent in not prosecuting the complaint properly could be ignored, and another chance could have been given to the respondent to prove the case by producing further evidence. It clearly amounts to giving an opportunity to the respondent to fill up the lacuna.” 11. It was laid down in Rajvinder Singh v. State of Haryana, (2016) 14 SCC 671: (2016) 4 SCC (Cri) 421: 2015 SCC OnLine SC 971 that where it was possible to examine the Forensic Expert at the trial stage, an application to examine him at the appellate stage cannot be allowed. It was observed at page 677 “12. At the outset, we must deal with submissions as regards the application for leading additional evidence at the appellate stage. It has been the consistent defence of the appellant that the dead body found in agricultural fields in District Muzaffarnagar was that of Pushpa Verma, and he went to the extent of producing a photograph of the dead body in the present trial. He also examined Brahm Pal Singh, Sub-Inspector and other witnesses. It was certainly possible to examine a forensic expert at the trial court stage itself, and the High Court was right and justified in rejecting the prayer to lead additional evidence at the appellate stage. Nonetheless, we have gone through the report of the said forensic expert engaged by the appellant. The exercise undertaken by that expert is to start 12 with the admitted photograph of Pushpa Verma on a computer, then remove the “bindi” by some process on the computer, then by the same process remove her spectacles and by computer imaging change the image as it would have looked if the lady was lying down in an injured condition. The computer image so changed was then compared with the photograph of the dead body. We have seen both the images, and we are not convinced at all about any element of similarity. We do not, therefore, see any reason to differ from the view taken by the High Court.” 12. It was held in Ajitsinh Chehuji Rathod v. State of Gujarat, (2024) 4 SCC 453: 2024 SCC OnLine SC 77, that the power under Section 391 of Cr.P.C. can be exercised when the party was prevented from presenting the evidence despite the exercise of due diligence or the facts giving rise to such prayer came to light during the pendency of the appeal. It was observed at page 455: “8. 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 391CrPC 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 13. The applicant is seeking to prove the registration certificate issued on 01.07.2017. He had filed the complaint before the learned trial Court in the year 2020. Thus, the document was in existence before filing of the complaint. Further, the certificate issued by UCO Bank could have been obtained before the learned trial Court. The applicant has failed to assign any reason as to why these documents were not produced before the learned trial Court. 14. It was submitted that the question of the applicant being the proprietor of Hind Construction never arose before the learned trial Court. This submission is stated to be rejected. Section 142(1)(a) provides that no Court shall take cognisance of any offence punishable under Section 138, except upon a complaint in writing made by the payee or the holder in due course of the cheque. Thus, the legislature has specifically provided that only the payee or the holder in due course can make a complaint to the Court. Hence, the applicant was required to establish that he was a payee or the holder in due course. The applicant cannot be heard to say that he did not produce the 14 evidence because nobody had asked him to do so. He was required to prove that he had satisfied the requirement of filing the complaint before making the complaint to the Court. 15. It was rightly submitted on behalf of the respondent that the documents are being sought to be produced to fill up the lacuna noticed by the learned Appellate Court. This would cause a serious prejudice to the respondent. Hence, the applicant cannot be permitted to produce the documents on record. 16. In view of the above, the present application fails and is dismissed. (Rakesh Kainthla) Judge 11th August 2026 (Ravinder)