# Iqbal Ahmad v. State of U.P. & Anr

- **Citation:** Application U/S 482 Cr.P.C. No. 3068 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** Application U/S 482 Cr.P.C. No. 3068 of 2020
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/iqbal-ahmad-v-state-of-u-p-anr-46363
- **Pages:** 7

## Headnote

Law-
The
Negotiable
instruments Act, 1981 - Section 138 -
Section 391 (1)- Cr.P.C.Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Section 243 Cr.P.C.
- Evidence for defence - Section 391
Cr.P.C. - Appellate court may take further
evidence or direct it to be taken - -
appellate court is entitled to take
additional evidence, only if it thinks,
additional evidence to be necessary - it
depends on facts of each and every case
to come to a conclusion as to whether it
is 'necessary' to take additional evidence
or not. (Para-12)

Complaint filed against the applicant - Section 138 of
the Negotiable Instruments Act - application moved
by the applicant before the trial court & concerned
bank - with respect to loss of cheque - cheque in
question dishonored with the endorsement
"insufficient fund" and not with the endorsement
"mismatch of signature" - For the first time, the
applicant claimed before the appellate court through
application under section 391 Cr.P.C. that the cheque
did not bear his signature and disputed cheque be
got examined by hand writing expert - despite ample
opportunity given during trial to get admitted
signatures compared with the disputed signature on
the cheque - no such prayer was made. (Para-16)

HELD:-The applicant did not want to file any
additional evidence but wanted to create new
evidence merely on the ground that the disputed
cheque does not bear his signatures . Application
under Section 391 Cr.P.C. filed by the applicant
before the Appellate court was not bonafide and was
simply moved to create confusion and delay in
disposal of appeal and the application has been
rightly rejected by learned Additional District and
Sessions Judge.(Para -13, 17)

Application
u/s
482
Cr.P.C.
dismissed. (E-7)

List Of Cases Cited:-

## Text

3-5 All. Iqbal Ahmad Vs. State of U.P. & Anr.
1563
wrong in the impugned order. This
application merits its dismissal.

11. Dismissed, as such.
----------
(2020)03-05ILR A1563
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 Cr.P.C. No. 3068 of 2020

Iqbal Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gaurav Kakkar, Sri Pravin Kumar Mishra

Counsel for the Opposite Parties:
A.G.A.

(A)
Criminal
Law-
The
Negotiable
instruments Act, 1981 - Section 138 -
Section 391 (1)- Cr.P.C.Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Section 243 Cr.P.C.
- Evidence for defence - Section 391
Cr.P.C. - Appellate court may take further
evidence or direct it to be taken - -
appellate court is entitled to take
additional evidence, only if it thinks,
additional evidence to be necessary - it
depends on facts of each and every case
to come to a conclusion as to whether it
is 'necessary' to take additional evidence
or not. (Para-12)

Complaint filed against the applicant - Section 138 of
the Negotiable Instruments Act - application moved
by the applicant before the trial court & concerned
bank - with respect to loss of cheque - cheque in
question dishonored with the endorsement
"insufficient fund" and not with the endorsement
"mismatch of signature" - For the first time, the
applicant claimed before the appellate court through
application under section 391 Cr.P.C. that the cheque
did not bear his signature and disputed cheque be
got examined by hand writing expert - despite ample
opportunity given during trial to get admitted
signatures compared with the disputed signature on
the cheque - no such prayer was made. (Para-16)

HELD:-The applicant did not want to file any
additional evidence but wanted to create new
evidence merely on the ground that the disputed
cheque does not bear his signatures . Application
under Section 391 Cr.P.C. filed by the applicant
before the Appellate court was not bonafide and was
simply moved to create confusion and delay in
disposal of appeal and the application has been
rightly rejected by learned Additional District and
Sessions Judge.(Para -13, 17)

Application
u/s
482
Cr.P.C.
dismissed. (E-7)

List Of Cases Cited:-

1. Rambhau and Another Vs. St. of Mah.,
(2001) 4 SCC 759

2. Kalyani Baskar vs. M.S. Sampornam ,
2006 0 Supreme(SC) 1109

3. Brig. Sukhjeet Singh (Retd.) MVC vs. St.
of U.P. & ors., , 2019 (3) Supreme 242

(Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.)

1. Supplementary affidavit filed by
the learned counsel for the applicant today
in the Court, which is taken on record.

2. Heard Mr. Pravin Kumar Mishra,
learned counsel for the applicant, Mr. P.K.
Shahi, learned A.G.A. for the State and
perused the record.

3. This application under Section 482
Cr.P.C. has been filed by the applicant
seeking to quash the impugned order dated
12.12.2019
passed
by
the
learned
1564 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District and Sessions Judge,
Court No.05, Bijnor in Criminal Appeal
No. 72 of 2018, whereby an application
under Section 391 Cr.P.C. was rejected.

4. The brief facts of the case are that,
a complaint has been filed by the
complainant/opposite party no.2 against the
applicant under Section 138 of the
Negotiable Instruments Act with the
allegations that the applicant purchased
pots of brass worth Rs. 2,75,000/- on
24.04.2015 from opposite party no. 2 and
for payment of which, he gave a cheque
bearing No.993347 dated 24.04.2015 for
Rs. 2,75,000/- drawn on Oriental Bank of
Commerce,
Branch,
Bhaneda
to
the
complainant. The cheque was presented
before the concerned bank on 24.04.2015
but it was dishonored with the endorsement
''insufficient fund'. A notice was sent by the
complainant
to
the
applicant
on
28.04.2015, which was received by him on
29.04.2015, but despite notice, the amount
was not paid. Therefore, the complaint was
filed against the applicant, on which, the
applicant was summoned and put into for
the trial. After trial, the learned Judge,
Additional Court, Bijnor, vide judgment
and order dated 31.10.2018 convicted the
applicant under Section 138 of the
Negotiable Instruments Act and sentenced
him to undergo simple imprisonment for
three months with fine of Rs. 3,50,000/-
and in case of default of payment of fine
further undergone simple imprisonment for
a period of one month. It was further
directed that out of total amount of
fine/compensation of Rs. 3,50,000/-, Rs.
3,40,000/- has been directed in favour of
complainant/opposite party no.2.

5. Feeling aggrieved by the judgment
and order of the trial court dated
31.10.2018, the applicant filed a Criminal
Appeal No. 72 of 2018, which is pending in
the Court of Additional District and
Sessions Judge, Court No. 05, Bijnor.
During pendency of appeal, an application
Kha-22 was moved by the applicant under
Section 391 Cr.P.C. for getting the alleged
signature of the applicant on the disputed
chaque verified by hand writing expert on
the ground that the cheque was alleged to
have been issued by the applicant on
24.04.2015 whereas the cheque was not
issued by the applicant nor it bears
signature. During defence evidence, the
applicant had moved applications B-25 and
B-26 before the court below stating therein
that the cheque of applicant was stolen for
which an application was given to the bank
concerned on 29.04.2015. Consequently,
the application under Section 391 Cr.P.C.
was rejected by the Additional District and
Session Judge on the ground that earlier no
such application was moved by the
applicant before the trial court with respect
to verification of the signature of the
applicant on the disputed cheque, however,
the applicant moved the applications B-25
and B-26 before the trial court regarding
stolen cheque. During trial, applicant had
enough time to verify his signature but the
opportunity was not availed by the
applicant and, therefore, no sufficient
ground to invoke Section 391 Cr.P.C.
arises. Consequently, application Kh-22
was rejected.

6. It has been contended by learned
counsel for the applicant that learned
Additional District and Session Judge, was
not justified in rejecting the application
under Section 391 Cr.P.C. specially when
there was specific denial of the applicant
that the cheque did not bear his signature
and entire case was fabricated. The cheque
was stolen and was misused, for which, an
application was already moved by the
3-5 All. Iqbal Ahmad Vs. State of U.P. & Anr.
1565
applicant before the concerned bank.
Therefore, the appellate court should have
directed for sending the disputed cheque to
hand writing expert for verification of
signature on the cheque in question. It has
further been contended by learned counsel
for the applicant that appellate court
committed
error
in
not
exercising
jurisdiction under Section 391 Cr.P.C. in
not permitting the applicant to verify his
signature by hand writing expert, which has
resulted in failure of justice.

7. Learned counsel for the applicant
has relied upon the judgment of the Hon'ble
Supreme Court in the case of "Brig.
Sukhjeet Singh (Retd.) MVC vs. State of
Uttar Pradesh and others" reported in
2019 (3) Supreme 242 wherein the Hon'ble
Supreme Court has held as under:-

"11. In the present appeal, we are
concerned only with the rejection of
application filed by the appellant under
Section 391 Cr.P.C. before the Session
Judge in the criminal appeal filed by him
against the conviction order, whether the
Session Judge committed error in not
exercising
power
under
Section
391
Cr.P.C. to permit the appellant to lead
additional evidence is a question to be
answered.
Whether
the
High
Court
committed error in not exercising power
under Section 482 Cr.P.C. as to secure the
ends of justice?

12. Chapter XXIX of the Code of
Criminal Procedure, 1973 deals with
"Appeals". Section 391 Cr.P.C. empowers
the Appellate Court to take further
evidence or direct it to be taken. Section
391 is as follows:-

"391. Appellate court may take
further evidence or direct it to be taken.--

(1) In dealing with any appeal
under this chapter, the Appellate Court, if it
thinks additional evidence to be necessary,
shall record its reasons and may either take
such evidence itself, or direct it to be taken
by a Magistrate, or when the Appellate
Court is a High Court, by a Court of
Session or a Magistrate. (2) When the
additional evidence is taken by the Court of
Session or the Magistrate, it or he shall
certify such evidence to the Appellate
Court, and such Court shall thereupon
proceed to dispose of the appeal. (3) 7 of
13 The accused or his pleader shall have
the right to be present when the additional
evidence is taken. (4) The taking of
evidence under this section shall be subject
to the provisions of Chapter XXIII, as if it
were an inquiry."

13. The key words in Section
391(1) are "if it thinks additional evidence
to be necessary". The word "necessary"
used in Section 391(1) is to mean necessary
for deciding the appeal. The appeal has
been filed by the accused, who have been
convicted. The powers of Appellate Court
are contained in Section 386. In an appeal
from a conviction, an Appellate Court can
exercise power under Section 386(b),
which is to the following effect:-

(b)
in
an
appeal
from
a
conviction- (i) reverse the finding and
sentence and acquit or discharge the
accused, or order him to be re- tried by a
Court
of
competent
jurisdiction
subordinate to such Appellate Court or
committed for trial, or (ii) alter the finding,
maintaining the sentence, or (iii) with or
without altering the finding, alter the
nature or the extent, or the nature and
extent, of the sentence, but not so as to
enhance the Same;

14. Power to take additional
evidence under Section 391 is, thus, with
an object to appropriately decide the
appeal by the Appellate Court to secure
ends of justice. The scope and ambit of
1566 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 391 Cr.P.C. has come up for
consideration
before
this
Court
in
Rajeswar Prasad Misra Vs. State of West
Bengal and Another, AIR 1965 SC 1887.
Justice Hidayatullah, speaking for the
Bench held that a wide discretion is
conferred on the Appellate Courts and the
additional evidence may be necessary for a
variety of reasons. He held that additional
evidence must be necessary 8 of 13 not
because
it
would
be
impossible
to
pronounce judgment but because there
would be failure of justice without it.
Following was laid down in Paragraph
Nos. 8 and 9:-

"8. ..................................... Since
a wide discretion is conferred on appellate
courts, the limits of that courts' jurisdiction
must obviously be dictated by the exigency
of the situation and fair play and good
sense appear to be the only safe guides.
There is, no doubt, some analogy between
the power to order a retrial and the power
to take additional evidence. The former is
an extreme step appropriately taken if
additional evidence will not suffice. Both
actions subsume failure of justice as a
condition precedent. There the resemblance
ends and it is hardly proper to construe one
section with the aid of observations made
by this Court in the interpretation of the
other section.
9. Additional evidence
may be necessary for a variety of reasons
which it is hardly proper to construe one
section with the aid of observations made
to do what the legislature has refrained
from doing, namely, to control discretion of
the appellate court to certain stated
circumstances. It may, however, be said
that additional evidence must be necessary
not because it would be impossible to
pronounce judgment but because there
would be failure of justice without it. The
power must be exercised sparingly and
only in suitable cases. Once such action is
justified, there is no restriction on the kind
of evidence which may 9 of 13 be received.
It may be formal or substantial. It must, of
course, not be received in such a way as to
cause prejudice to the accused as for
example it should not be received as a
disguise for a retrial or to change the
nature of the case against him. The order
must not ordinarily be made if the
prosecution has had a fair opportunity and
has
not
availed
of
it
unless
the
requirements
of
justice
dictate
otherwise...... ........................."

15. This Court again in Rambhau
and Another Vs. State of Maharashtra,
(2001) 4 SCC 759 had noted the power
under Section 391 Cr.P.C. of the Appellate
Court. Following was stated in Paragraph
Nos. 1 and 2:-

"1. There is available a very wide
discretion in the matter of obtaining
additional evidence in terms of Section 391
of the Code of Criminal Procedure. A plain
look at the statutory provisions (Section
391) would reveal the same........................
2. A word of caution however, ought to be
introduced for guidance, to wit: that this
additional evidence cannot and ought not
to be received in such a way so as to cause
any prejudice to the accused. It is not a
disguise for a retrial or to change the
nature of the case against the accused. This
Court in the case of Rajeswar Prasad
Misra v. State of W.B. in no uncertain
terms observed that the order must not
ordinarily be made if the prosecution has
had a fair opportunity and has not availed
of it. This Court was candid enough to
record however, that it is the concept of
justice which ought to prevail and 10 of 13
in the event, the same dictates exercise of
power as conferred by the Code, there
ought not to be any hesitation in that
regard."
3-5 All. Iqbal Ahmad Vs. State of U.P. & Anr.
1567

16. From the law laid down by
this Court as noted above, it is clear that
there are no fetters on the power under
Section 391 Cr.P.C. of the Appellate Court.
All powers are conferred on the Court to
secure ends of justice. The ultimate object
of judicial administration is to secure ends
of justice. Court exists for rendering justice
to
the
people...."
In
the
aforesaid
judgment, the Hon'ble Supreme Court
while discussing two grounds rejecting the
application under Section 391 Cr.P.C. by
the Court of Sessions and High Court held
that neither the filing of an application for
additional evidence at a belated stage is a
ground to reject the same nor the delay in
decision of the appeal is a ground to
dismiss
the
same
if
the
proposed
additional evidence enables the Court to
secure the ends of justice in achieving the
object of judicial administration."

8. Learned counsel for the applicant
has also relied upon the judgment of the
Hon'ble Supreme Court in the case of
"Kalyani Baskar vs. M.S. Sampornam"
reported in 2006 0 Supreme(SC) 1109.

9. Learned counsel for the applicant has,
thus, contended that if the applicant is able to
prove that his standards signature do not tally
with the signature appended on the cheque in
question, he can be acquitted and, therefore, the
impugned order dated 12.12.2019, passed by
the appellate court, dismissing the application of
the applicnat filed under Section 391 Cr.P.C.,
be set aside.

10. Per contra, Mr. P.K. Shahi, learned
A.G.A. for the State supported the impugned
order and submitted that the cheque was issued
by the applicant in connection with payment
which was due from the applicant. During
defence evidence, the applicant had ample
opportunity to file an application for verifying
his signature but he did not make any
application before the trial court for comparison
of his admitted signature with the disputed
signature on the cheque in question and no such
application was maintainable in the appellate
court. It was also submitted that provisions of
Section 391 Cr.P.C. will apply only in case of
additional evidence, which came to light
subsequently but the provision cannot be used
to create additional evidence, which was not
available to the trial court.

11. Before dealing with the arguments of
learned counsel for the applicant, it would be
useful to reproduce Section 391 of the Code of
Criminal Procedure:-

"391. Appellate court may take
further evidence or direct it to be taken.-

(1) In dealing with any appeal
under this chapter, the Appellate Court, if it
thinks additional evidence to be necessary,
shall record its reasons and may either take
such evidence itself, or direct it to be taken
by a Magistrate, or when the Appellate
Court is a High Court, by a Court of
Session or a Magistrate.

(2) When the additional evidence
is taken by the Court of Session or the
Magistrate, it or he shall certify such
evidence to the Appellate Court, and such
Court shall thereupon proceed to dispose
of the appeal.

(3) The accused or his pleader
shall have the right to be present when the
additional evidence is taken.

(4) The taking of evidence under
this section shall be subject to the
provisions of Chapter XXIII, as if it were
an inquiry."

12. According to Section 391 (1)
Cr.P.C., the appellate court is entitled to
take additional evidence, only if it thinks,
additional evidence to be necessary. The
1568 INDIAN LAW REPORTS ALLAHABAD SERIES
key words in Section 391(1) Cr.P.C. are 'if
it
thinks
additional
evidence
to
be
necessary'. The word 'necessary' used in
Section
391(1)
Cr.P.C.
is
to
mean
necessary
for
deciding
the
appeal.
However, it depends on facts of each and
every case to come to a conclusion as to
whether it is 'necessary' to take additional
evidence or not.

13. In the facts and circumstances of
the present case, the applicant did not want
to file any additional evidence but wanted
to create new evidence merely on the
ground that the disputed cheque does not
bear his signatures.

14. The judgment relied upon by
learned counsel for the applicant, in the
case of Brig. Sukhjeet Singh (supra)
wherein the Apex Court has held that mere
delay in filing the application is not a
ground to reject the same if the proposed
additional evidence allows the lower
appellate Court to achieve the object of
judicial administration and to secure the
ends of justice. This decision is of no help
of the applicant as the Appellate Court has
not rejected the application under Section
391 Cr.P.C. on the ground of delay in filing
the said application, whereas, the Appellate
Court has rejected the same on the ground
that during course of trial, the applicant did
not move any application for verification of
his signature, it means that, the applicant
did not want to file any additional evidence
but wanted to create new evidence merely
on the ground that the disputed cheque does
not bear his signatures.

15. The judgment relied upon by
learned counsel for the applicant, in the
case of Kalyani Baskar (supra) wherein
the Apex Court has held that where the
accused denies his or her signature on the
cheque and moved an application under
Section 243 Cr.P.C. for sending the cheque
in question for expert opinion, the same
should have been allowed. This decision is
also of no help of the applicant as during
trial before the court below, the applicant
did not make any application under Section
243 Cr.P.C. for verification of signature by
hand writing expert, though sufficient
opportunity was granted by the trial court
to the applicant to lead defence evidence.
Had such an application been moved before
the trial court and the same having been
rejected, it was open to the applicant to
make a prayer under Section 391 Cr.P.C.
before the Appellate Court but since no
such prayer was made by the applicant
before the trial court, there was no occasion
for moving such an application before the
Sessions Judge.

16. Perusal of the record shows that
during trial, the applicant moved an
application before the trial court with
respect to loss of cheque for which an
application was moved by the applicant
before the concerned bank on 01.04.2015.
However, the cheque in question was
dishonored
with
the
endorsement
"insufficient fund" and not with the
endorsement "mismatch of signature".
Thus, it is clear that signature on the
cheque is of the applicant. In spite of that,
if the applicant find that the cheque in
question was not issued by him, he should
have moved an application before the trial
court for verification of his signature by
hand writing expert. For the first time, the
applicant claimed before the appellate court
that the cheque did not bear his signature
and disputed cheque be got examined by
hand writing expert. The applicant had
ample opportunity during trial to get his
admitted signatures compared with the
disputed signature on the cheque but
3-5 All. Anil Kumar Agarwal Vs. State of U.P. & Anr.
1569
despite sufficient opportunity being given
by the trial court, no such prayer was made
by him. Thus the application for getting the
signatures verified by handwriting expert
was simply moved with a view to delay the
disposal of appeal and the application
under Section 391 Cr.P.C. does not appear
to be bonafide.

17.

Having
considered
the
submissions advanced by learned counsel
for the applicant, learned A.G.A. and also
perusing the record, I have come to the
conclusion that application under Section
391 Cr.P.C. filed by the applicant before
the Appellate court was not bonafide and
was simply moved to create confusion and
delay in disposal of appeal and the
application has been rightly rejected by
learned Additional District and Sessions
Judge, Bijnor. Hence the prayer made in
the present application is refused.

18. The present application lacks
merit and is, accordingly, rejected.
----------
(2020)03-05ILR A1569
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 Cr.P.C. No. 3171 of 2016
connected with
Application U/S 482 Cr.P.C. No. 7792 of 2017
connected with
Application U/S 482 No. 7793 of 2017
connected with
Application U/S 482 No. 7790 of 2017
connected with
Application U/S 482 No. 7795 of 2017

Anil Kumar Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Hare Krishna Tripathi

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law- Forum to file an
appeal - legal controversy - referred
to larger bench for opinion - Code of
criminal procedure, 1973 - Section
482 Cr.P.C - appeal being the
creation of statute - when the victim
or
when
the
victim
is
also
a
complainant chose to file an appeal
against acquittal in a case instituted
upon complaint, it would be under
proviso to Section 372 CrPC read with
378 (4) & 378 (5) CrPC - Proviso to
372 CrPC gives right to the victim to
file an appeal - Section 378 (4) & (5)
CrPC provides procedure, limitation
and forum to file an appeal in a case
instituted upon complaint.
(Para-40)

Complainant filed an application under section
138 of Negotiable Instruments Act before the
court of Chief Judicial Magistrate - accused
acquitted by the concerned Magistrate after
dismissal of the complaint - Against the order of
acquittal the complainant preferred an appeal,
before the Sessions Court under section 372
Cr.P.C. - appeal dismissed by the sessions court
- ground - not maintainable under section 372
Cr.P.C. - application under section 482 Cr.P.C.
filed with a prayer to quash the order passed by
the Additional District and Sessions Judge.
(Para-3,4)

HELD:- (a)The appeal by a 'victim' who is a
complainant also against the order of acquittal
in a criminal complaint case under 138 of
Negotiable Instrument Act would lie to the High
Court under proviso to Section 372 read with
Sub-section (4) & (5) of Section 378 CrPC.
(Para - 41)
(b) Against the same judgment and order of
acquittal in a complaint case, in a situation