Crl. A. 1455/2012 & Crl. M.B. 2246/2012, Crl. M.A. 442/2013 and Crl. A. 145/2013 & Crl. M.B. 213/2013. Case: 1. Anil Maheshwari, 2. Vinod Kumar Bhutani Vs 1. CBI, [Alongwith Crl. A. 60, 99 and 100/2013 & Crl. M.B. 91, 138 and 139/2013], 2. State. High Court of Delhi (India)
| Case Number | Crl. A. 1455/2012 & Crl. M.B. 2246/2012, Crl. M.A. 442/2013 and Crl. A. 145/2013 & Crl. M.B. 213/2013 |
| Counsel | For Appellant: Mr. B. Badrinath, Adv., Mr. K.R. Pamei, Adv., Mr. B.S. Randhawa and Mr. Dinesh Kothari, Advs. and Mr. Anil Soni, Mr. Neeraj Arora and Mr. Aekansh Shukla, Advs. And For Respondents: Ms. Rajdipa Behura, Spl. PP, Ms. Nidhi Sharma, Ms. Nitya Bansal and Mr. Saket Mishra, Advs. and SI Chandra Bhan, Adv. |
| Judges | Mukta Gupta, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Rule 27; Code of Criminal Procedure, 1973 (CrPC) - Sections 160, 313, 391; Indian Evidence Act, 1872 - Sections 101, 106, 112, 45, 46, 47, 60, 64, 67, 73; Indian Penal Code (45 of 1860) (IPC) - Sections 120B, 420, 464, 467, 468, 470, 471; Insurance Act, 1938 (4 of 1938) - Section 64(5)(b); Prevention of ... |
| Judgement Date | May 28, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
Mukta Gupta, J.
Crl. M.A. 442/2013 in Crl. A. 1455/2011
By this application the applicant seeks leave of this Court to adduce additional evidence. The contention of learned counsel for the Applicant is that at the time of leading defence evidence, counsel for the Appellant only examined three witnesses including the Appellant. Though the Appellant provided all the documents to the learned counsel for leading defence evidence regarding proof of existence of M/s. Supreme Trading Corporation at 3499, Chawri Bazar, Delhi-06, however the Appellant was advised by Shri Rajesh Kohli that the said documents were not required to be adduced since the same would not affect the outcome of the trial. Further, the Appellant was made to believe that the prosecution evidence was insufficient and that adducing evidence to prove existence of the firm would be a futile exercise. The Appellant following the advice proceeded accordingly and did not lead further defence evidence to prove that the firm M/s. Supreme Trading Corporation was not a non-existent and fictitious firm. By the impugned judgment the learned Trial Court has invoked Section 106 Evidence Act. Since the learned Trial Court has invoked Section 106 Evidence Act, the Appellant has been prejudiced and thus this Court should permit adducing of additional evidence so as to vindicate the innocence of the Appellant. Reliance is placed on Zahira Habuballa Sheikh Vs. State of Gujarat (2004) 4 SCC 158 and Ashok Tshering Bhutia Vs. State of Sikkim (2011) 4 SCC 402. The Appellant has annexed documents in support of the application which he seeks to adduce as additional evidence.
Learned counsel for the CBI submits that the documents now sought to be adduced in the additional evidence are of year 2001 onwards whereas the enquiry started in the year 1999. The Appellant even now has not been able to produce any document in the name of Supreme Trading Corporation at the given address except one which is on page 52 of the application dated 20th December, 2002 which is a self-generated document.
I have heard learned counsel for the parties. Section 391 Cr.P.C. permits leading of additional evidence at the Appellate stage in case non-adducing thereof results in failure of justice. However said power has to be used sparingly and only in exceptional suitable cases, where the Court is satisfied that directing additional evidence would serve the interest of justice. Further the additional evidence cannot be permitted to be adduced at the stage of appeal to fill in the lacunaes in the prosecution case or the defence case. The averment of the applicant is not that despite due diligence he was not in possession of the documents. The applicant was in possession of the documents, however on the advice of Rajesh Kumar Kohli the co-accused he did not exhibit these documents. Whether the documents were required to be produced in defence or not ought to have been the decision of the Appellant and his counsel and there is no averment in the application on affidavit that the Appellant was advised by his counsel not to lead/exhibit the relevant documents in defence, especially when the applicant entered as a defence witness in the witness box. Further the documents i.e. the bills of the telephones at 2nd Floor, 3499 Chawri Bazar are in the name of Shri S.P. Maheshwari and other documents are not of the period in question but subsequent thereto and would have been thus of no relevance even if permitted to be adduced. The legal position for adducing additional evidence before the Appellate Court under Section 391 Cr.P.C. has been summarized by the Hon'ble Supreme Court in Ashok Tshering Bhutia Vs. State of Sikkim (2011) 4 SCC 402.
28. Additional evidence at the 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 CrPC 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. State of W.B. [AIR 1965 SC 1887: (1965) 2 Cri LJ 817], Ratilal Bhanji Mithani v. State of Maharashtra [(1971) 1 SCC 523: 1971 SCC (Cri) 231: AIR 1971 SC 1630], Rambhau v. State of Maharashtra [(2001) 4 SCC 759: 2001 SCC (Cri) 812: AIR 2001 SC 2120], Anil Sharma v. State of Jharkhand [(2004) 5 SCC 679: 2004 SCC (Cri) 1706: AIR 2004 SC 2294], Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158: 2004 SCC (Cri) 999] and Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1: (2010) 2 SCC (Cri) 1385: AIR 2010 SC 2352].]
30. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364: 1987 SCC (Cri) 364: AIR 1987 SC 1321] dealing with the issue held as under: (SCC pp. 370-71, para 5)
5.... 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 the 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 [(2001) 4 SCC 759: 2001 SCC (Cri) 812: AIR 2001 SC 2120], a larger Bench of this Court held as under: (SCC p. 762, para 4)
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 Civil Procedure 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 CrPC cannot be pressed into service in order to fill up lacunae in the prosecution case.
I find no merit in the application. The same is dismissed.
CRL. A. 1455/2012 & Crl. M.B. 2246/2012
CRL. A. 60/2013 & Crl. M.B. 91/2013
CRL. A. 99/2013 & Crl. M.B. 138/2013
CRL. A. 100/2013 & Crl. M.B. 139/2013
CRL. A. 145/2013 & Crl. M.B. 213/2013
1. The present appeals arise out of a common impugned judgment dated 20th November, 2012 whereby the Appellants have been convicted for offences punishable under Section 120B read with Sections 420/ 467/ 468/ 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short the PC Act). In addition to the above-mentioned provisions, Appellants Rajesh Kumar Kohli and Vinod Kumar Bhutani have been convicted for substantive offence under Section 13(2) read with Section 13(1)(d) of the PC Act, Appellants Arvind Kumar Sharma and Kunwar Vijay Juneja for offence punishable under Section 468 IPC and Appellant Anil Maheshwari for offences punishable under Section 420 and 471 IPC. Vide the impugned order on sentence dated 7th December, 2012 the Appellants have been awarded three years rigorous imprisonment and fine of Rs. 5000/- and in default of payment of fine, one month simple imprisonment each for offence punishable under Section 120B IPC. Appellant Anil Maheshwari has in addition been awarded rigorous imprisonment of four years and a fine of Rs. 5 lakh and in default of payment of fine one year simple imprisonment for offence punishable under Section 420 IPC and rigorous imprisonment for three years, six months and a fine of Rs. 10,000/- and in default of payment of payment of fine two months simple imprisonment for offence punishable under Section 471 IPC. Appellants Arvind Kumar Sharma and Kunwar Vijay Juneja have been in addition awarded rigorous imprisonment for three years and six months and a fine of Rs. 10,000/- each and in default to undergo two months simple imprisonment for offence...
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