Appellate Court Shall Take Recourse To Section 391 CrPC If Requirement Is Calling For Additional Evidence Alone: Kerala HC

The Kerala High Court ruled that if the Appellate Court is of the view that what is required is calling for additional evidence alone, the recourse shall be to Section 391 of the CrPC and this provision does not contemplate any retrial.

The High Court further clarified that whether it is retrial in terms of Section 386(b) or collection of additional evidence in terms of Section 391 of CrPC, it is mandatory that the accused is examined under Section 313(1)(b) of CrPC with reference to the incriminating circumstances appearing in such additional evidence.

A Single Judge Bench of Justice P.G Ajithkumar observed that “If a case is ordered to be retried, ordinarily it is a denovo trial. The Appellate Court is, however, not debarred from directing to use the evidence already recorded and to proceed to record additional evidence. In such a case, the trial court is obliged to give opportunity to both parties to adduce further evidence, if they propose to adduce and to examine the accused under Section 313(1)(b) of the Code before rendering its judgment”.

The Bench further added that if it is a direction to take additional evidence, the Appellate Court shall state in its order the facts regarding which additional evidence is to be taken and to examine the accused under Section 313(1)(b) of the Code with respect to such additional evidence.

Advocate T.O. Xavier appeared for the Revision Petitioner, whereas Advocate M.S Letha appeared for the Respondent.

The brief facts of the case were that the first respondent filed a complaint alleging that the petitioner issued a cheque for making payment of Rs.7,20,000/- which he owed to the second respondent and the said cheque when presented for encashment was returned unpaid. It was alleged that despite receiving the demand notice, the petitioner failed to make the payment.

Before the Trial court, the petitioner took up the defence that the cheque was issued as a security, that no amount was due from him to the second respondent and the cheque is one drawn by a company, but the company was not made an accused. The Trial court found that M/s. V.J. George Nedungadan and Sons, in whose name cheque was drawn, is a proprietary concern.

The matter reached Appellate Court, which observed that the trial court erred in placing reliance on the stop payment instruction letter produced by the petitioner but not admitted in evidence, in order to hold that the petitioner is a proprietary concern. The Appellate Court further found that cheque returning memo, is one issued from the collecting bank and non-production of the dishonor memo issued from the drawee bank disabled the court to reach a finding about the real reason for return of the cheque. It was observed that the presumption available under Section 146 of the N.I. Act relating to banker's slip or memo is not available to reach a definite finding regarding the reason for dishonor of the cheque. It was for the said reasons, the Appellate Court ordered to remand the case to the trial court.

After considering the submission, the Bench observed that the powers of revision under Section 397 of CrPC is limited to examine correctness, legality and propriety of a finding, sentence or order recorded or passed by an inferior court.

Referring to the decision of the Apex Court in case of Nasib Singh and others v. State of Punjab and another [(2022) 2 SCC 89], the Bench emphasized that there are no fetters on the powers of the Appellate Court to record additional evidence under Section 391 of CrPC, and such powers are conferred on the Court to secure ends of justice.

The Bench went on to explain that retrial may be ordered when the trial was illegal, irregular or defective, and a retrial can also be ordered where there is no proper or fair trial and for the ends of justice a retrial is required.

“If the Appellate Court is of the view that what is required is calling for additional evidence alone, the recourse shall be to Section 391 of the Code and this provision does not contemplate any retrial. Whether it is retrial in terms of Section 386(b) or collection of additional evidence in terms of Section 391 of the Code, it is mandatory that the accused is examined under Section 313(1)(b) of the Code with reference to the incriminating circumstances appearing in such additional evidence”, added the Bench.

Hence, finding that the case was remanded for retrial, the High Court directed the petitioner and the first respondent to appear before the Judicial Magistrate who shall record further evidence, examine the accused under Section 313(1)(b) of the Code and submit the records along with such additional evidence and certificate to the Appellate Court within a period of three months.

Cause Title: Jimmy George v. Sreekumar and Anr. [Neutral Citation: 2023/KER/73707]

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