Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a criminal revision petition filed against the order of the appellate court whereby petitioner’s application under Section 391 of Criminal Procedure Code, for recording additional evidence, was dismissed.
The main issue that arose before the Court was whether the appellate court had rightly rejected the application of the petitioner under Section 391 of CrPC.
The Court observed that from bare perusal of Section 391 of CrPC, it becomes clear that production of additional evidence can be permitted in case of failure of justice. However, this power conferred upon criminal court should be exercised sparingly and hence an application under Section 391 of CrPC should be decided objectively, just to cure the irregularity. This power cannot be exercised to fill the lacuna. Further, the Court also observed that as per Section 139 of the Negotiable Instruments Act (N.I. Act), the onus to prove that the cheque was not received by the bank in furtherance of discharging a liability rests upon the drawer of the cheque and not the payee. There is no law which prescribes that in the negotiable instrument, the entire body of the instrument shall be written only by the maker or drawer of the instrument, i.e. even if it is written by some other person and signed by the drawer, then that signature would be sufficient to hold the drawer liable under Section 138 of the N.I. Act in case if it is dishonoured.
The Court held that in the present case the petitioner had accepted the fact that it was his signature on the cheque and hence there was no need to send the cheque to a handwriting expert. Further, the onus of proving that the cheque was not given to the payee in the discharge of a liability, rested upon the petitioner and the petitioner failed to prove the same. Hence, the revision petition filed by the petitioner was dismissed and the order of the appellate court was upheld.[Davinder Singh v. Kiran Pargal,2018 SCC OnLine J&K 740, order dated 17-10-2018]