HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc Application No. 1333 of 2017 12th August, 2025 Mustafa --Applicant Versus State of Uttarakhand and Another -Respondents Presence:- Mr. Sushil Kumar, learned counsel, holding brief of Mr. Gaurav Singh, learned counsel for the applicant. Mr. Deepak Bisht, learned Deputy Advocate General for the State. ---------------------------------------------------------------------- Hon'ble Alok Mahra, J. This criminal misc. application has been filed by the applicant for quashing the orders dated 25.05.2017 passed by 1st Additional Sessions Judge, Haridwar in Criminal Appeal No. 104 of 2013, Mustafa Vs. State of Uttarakhand and Others, whereby application paper no. 22-B under Section 391 Cr.P.C. filed by the applicant has been rejected. 2. Earlier respondent no. 2 filed a complaint against the applicant under Section 138 of N.I. Act, before the Court of learned Additional Civil Judge (Jr. Div.), Roorkee, District Haridwar, with the averment that applicant purchased diesel worth Rs. 75000/- from the petrol pump of respondent no. 2 and in lieu thereof, applicant issued a cheque of Rs. 75000/- dated 1 22.12.2005 to the respondent no. 2. The cheque when presented before the Bank, got dishonoured. Subsequent thereto, learned Magistrate took cognizance and applicant was summoned to face the trial. The learned Magistrate, vide its judgment and order dated 31.08.2013, convicted the applicant. Against this order, applicant filed an appeal before the learned Sessions Judge, Haridwar being Criminal Appeal No. 104 of 2013, which is pending consideration. During the pendency of the appeal, applicant moved an application under Section 391 Cr.P.C. with the averment that the cheque in question was not issued from the bank account of present applicant, therefore, the Bank Manager be summoned alongwith the record to prove the same. Learned 1st Additional Sessions Judge, Haridwar vide its order dated 25.05.2017 dismissed the application. Hence, the present criminal miscellaneous application. 3. Heard learned counsel for the parties and perused the record. 4. It is settled position in law 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 2 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. 5. In the case of Rambhau and another Vs. State of Maharashtra, reported in (2001) 4 SCC 759, Hon’ble Supreme Court, while dealing with an identical issue, has held as follows:- “4. Incidentally, Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the Civil Procedure Code.” 6. In the case in hand, it appears that Criminal Appeal was filed in the year 2013 against the judgment of conviction made in the criminal case. It appears that the applicant was thoroughly careless and negligent and now, under the pretext of the said application, applicant 3 is trying to prolong the proceedings of the Criminal Appeal. 7. Even otherwise also, learned Appellate Court has not opined that the additional evidence is necessary and essential for elucidation of truth or necessary for pronouncement of the judgment. 8. Perusal of the impugned order passed by learned Appellate Court reveals that the Court has considered & discussed all relevant aspects. Thus, the view taken by the learned Appellate Court cannot be faulted. Learned Appellate Court was thus justified in rejecting the application filed by the applicant under Section 391 Cr.P.C. Thus, this Court does not find any reason to interfere with the impugned order. 9. Accordingly, the criminal misc. application fails and is hereby dismissed. (Alok Mahra, J.) 12.08.2025 Ujjwal 4