Summary
An accused convicted under Section 138 of the Negotiable Instruments Act was not entitled to additional appellate evidence on his claimed forged cheque signature after failing to pursue that evidence at trial and leaving the trial court’s refusal of expert examination unchallenged. The appellate court could decide the postal-notice issue on the existing record.
Issues
- When may an appellate court admit additional evidence under Section 391 CrPC.
- Whether the accused’s proposed handwriting-expert and post-office evidence was necessary after the opportunities available at trial.
Provisions considered
- Section 391, Code of Criminal Procedure, 1973Additional evidence is appropriate where due diligence did not enable its production at trial or the relevant facts emerged later, and its absence may cause a failure of justice. The accused had an opportunity to develop the signature defence at trial and the earlier refusal of expert examination had become final. (¶¶ 9, 10, 16, 17, 18, 19)
- Section 118, Negotiable Instruments Act, 1881The Court noted that the Act provides rebuttable presumptions in favour of the holder and that the accused must adduce appropriate defence evidence to rebut them. It did not treat an appellate court as responsible for collecting that evidence. (¶¶ 13, 14, 17)
- Section 73, Indian Evidence Act, 1872The Court noted that an admitted specimen signature may be compared with the disputed signature, including by the court, as part of the available method of proof at trial. (¶¶ 15, 16)
- Certified copies of bank records, Bankers’ Books Evidence Act, 1891The Court noted that a certified bank record is admissible without formal proof and could have been obtained for use with a bank witness to support the defence. (¶¶ 15, 16)
Held
- Section 391 CrPC is not a means to collect defence evidence that the accused could have presented at trial. Additional evidence may be taken where due diligence did not enable its earlier production or relevant facts arose later, and its absence may cause a failure of justice. (¶¶ 9, 16, 17)
- The accused had examined a bank witness but did not question him about the signature, and the trial court’s refusal to obtain expert evidence was not challenged. The appellate court was not required to remedy that failure by collecting evidence for the defence. (¶¶ 10, 15, 16, 17, 18)
- The alleged non-receipt of the statutory notice could be assessed by the appellate court on the evidence already on record; summoning a post-office official under Section 391 was unnecessary. (¶ 19)
Result
The appeal was dismissed. The orders refusing additional evidence remained undisturbed, and the appellate court was to decide the notice issue on the existing record.