Neutral Citation No. - 2025:AHC:124735 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 20799 of 2025 Applicant :- Aziz Husain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sudhir Kumar Agarwal Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Sudhir Kumar Agarwal, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State. 2. This application u/s 528 of BNSS has been preferred to quash the order dated 20.02.2025 passed by Additional Sessions Judge/Special Judge (Essential Commodities Act), Jhansi in Criminal Appeal No. 18 of 2024 in Complaint Case No. 3080 of 2018 under Section 138 of NI Act (Aziz Husain Vs. State of U.P. & others) rejecting the application under Section 391 Cr.P.C./ 432 of BNSS-2023 (bearing Paper NO. 35A) moved by the applicant before him. 3. The case of the applicant is that a complaint under Section 138 of the NI Act stood lodged by the opposite party no. 2 on 22.11.2018 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque of Rs. 7,00,000/- bearing No. 002303 dated 23.10.2018 which on presentation in the bank came to be dishonored and the dishonor note was dated 26.10.2018, a statutory demand notice was issued on 01.11.2018 but since the payment was not made, complaint was lodged on 22.11.2018 under Section 138 of the NI Act thereafter, the applicant came to be summoned and was convicted on 05.10.2023 in complaint case no. 3080 of 2018 by Presiding Officer, Additional Court, Jhansi. Against the conviction order, the applicant preferred an appeal before the District and Sessions Judge, Jhansi, Appeal No. 18 of 2024. An application under Section 391 Cr.P.C./432 BNSS came to be filed by the applicant herein on 07.02.2025 for producing additional evidence being the bank transaction on the basis whereof, the cheque of Rs. 7,00,000/- was stated to be drawn by the applicant which on encashment came to be dishonored, ITR of the complainant, the dishonor memo and also made a prayer for getting the handwriting expert/forensic report of the signature on the cheque. The said application application came to be objected by the opposite party no. 2 while filing objection on 10.02.2025 which came to be rejected by the court Special Judge, Essential Commodity Act/Additional Sessions Judge, Jhansi on 20.02.2025. 4. Questioning the said order, the present application has been preferred. 5. Learned counsel for the applicant has submitted that the application preferred by the applicant under Section 391 Cr.P.C./432 BNSS was itself maintainable and it contained grounds which necessitated allowing of the said application particularly when no prejudice whatsoever would have been caused. Submission is that the bank transaction as well as the ITR would bring the truth to surface whether the claim set up by the opposite party no. 2 in the complaint was appropriate or not. Further submission is that due to certain circumstances which was beyond control and comprehension, the said exercise could not be taken while filing an application before the trial court which led to conviction but the court in the interest of justice while looking into the nature of the prayer made herein can obviously allow the same and the same is permissible. Further submission is that no prejudice is being caused to the opposite party no. 2 and further the report of the handwriting expert/forensic would clear the controversy. 6. Learned State Law Officer, on the other hand, submits that from the perusal of the application it would reveal that the same have been preferred at an appellate stage particularly when the appeal is at the stage of hearing he submits that it is nothing but a classic case of filling up of lacunaes which is not permissible in the proceedings under Section 391 Cr.P.C./432 BNSS. 7. I have heard the submission so made across the bar and perused the record carefully. 8. Apparently, with respect to dishonoring of a cheque of Rs. 7,00,000/- bearing no. 002303 dated 23.10.2018 when it came to be dishonored on 26.10.2018 followed by a statutory demand notice dated 01.11.2018 an the complaint under Section 138 on 22.11.2018, the applicant came to be summoned in the year 2018 itself. The applicant-accused herein participated in the trial and joined the proceedings while putting forward his stand and after hearing him, an order of conviction came to be passed by the trial court on 05.10.2023. Thereafter an appeal also came to be preferred by the applicant being Appeal No. 18 of 2024 which as per the order under challenge is at the stage of hearing, however, on 07.02.2025, the application under Section 391 Cr.P.C./432 BNSS came to be preferred for the purposes of bringing into the additional evidence, the ITR, bank transactions and also otehr documents in order to substantiate that the claim set up by the opposite party no. 2 is bogus. Further a prayer was made for seeking report of the handwriting expert/forensic laboratory. The court below in the order under challenge has rejected the application primarily on the ground that there was enough opportunities available with the applicant herein to undertake the said exercise while taking the said application under Section 391 Cr.P.C./432 BNSS before the trial court. As a matter of fact, it transpires from the record that the applicant contested the trial and for the very first time, post preferring the appeal at the stage of final hearing has filed the present application. No plausible reasons are forthcoming as to why the said exercise was not undertaking earlier. On a specific query being raised to the learned counsel for the applicant to disclose the reasons and preferring the said application at the appellate stage, the submission of the learned counsel for the applicant is that it was the mistake of the lawyer and ignorance. Pertinently, the said ground cannot be considered as a factor for allowing the said application particularly when the proceedings under Section 391 Cr.P.C./432 BNSS is not to be used as a tool to fill up the lacunae which had arisen. In Ashok Tshering Bhutia Vs. State of Sikkim 2011 (4) SCC 402, the Hon'ble Apex Court had the occasion to consider the said aspect which are as under.- "28. Additional evidence at 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. 29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887; Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971 SC 1630; Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120; Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & ors., (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352). 30. This Court in State of Gujarat vs. Mohanlal Jitamalji Porwal & anr., AIR 1987 SC 1321, dealing with the issue held as under: "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....." 31. In Rambhau (supra), a larger Bench of this Court held as under: (SCC p. 762, para 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 C.P. Code." (Emphasis added) 32. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case." 9. As a matter of fact, it is also not a case of the applicant that it was prevented for reasons beyond the control in not filing the said application as nothing is forthcoming. 10. Cumulatively analyzing the case from the four corners of law and looking into the reasons assigned in the order rejecting the said application, this Court finds that the court below has considered the aspect of the matter and did not find it appropriate while according reasons for allowing the application under Section 391 Cr.P.C./432 BNSS. Even before this Court, no reasons whatsoever are forthcoming. 11. Accordingly, no case is made out, interference is declined, the application is rejected. Order Date :- 28.7.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad