REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL     NO.148 of     2019  (arising out of SLP (Crl.) No.1120/2017)

BRIG. SUKHJEET SINGH (RETD.) MVC      ...APPELLANT(S)

VERSUS

THE STATE OF UTTAR PRADESH & ORS.    ...RESPONDENT(S)

J     U     D     G     M     E     N     T ASHOK     BHUSHAN,J.

Leave granted.

2. This  appeal  has  been  filed  questioning  the

judgment  of  Allahabad  High  Court  dated  17.01.2017

dismissing  the  application  filed  by  the  appellant

under Section 482 Cr.P.C. wherein the orders passed

by the Session Judge dated 02.11.2015 rejecting the

two applications filed by the appellant under Section

391 Cr.P.C. were challenged.   

3. Brief facts of the case, which are necessary to

be noted for deciding this appeal are:-

3.1 A Regimental Welfare Trust relating to the

Scinde  Horse  Regiment  of  Indian  Army  was

registered on 27.06.1959.  The Trust owned

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various  immovable  properties  including

agricultural  land  in  Village  Bichaie,

Phoolpur  and  Beehat  in  Tehsil-Bilaspur,

District-Rampur.  The respondent No.2 was in

possession of 50 acres of agricultural land

of the trust since 1975 in Village-Bichaie

as thekedar.  Other agricultural land of the

trust in three villages of Tehsil-Bilaspur

were given to different persons as thekedar.

3.2 The office of Chairman of the Trust is held

by the Commandant of Scinde Horse Regiment.

On  18.10.1989,  a  deed  of  declaration  of

trust was executed by the Commandant of the

Scinde Horse Regiment claiming it to be a

new Trust Deed without changing the nature

of the trust. In the deed dated 18.10.1989

(registered at Delhi), details of trust land

in  District-  Rampur  were  also  mentioned,

which included 474 Bigha land in Village-

Bichaie.  One of the clauses mentioned in

the  Trust  Deed  was  that  there  may  be

conversion of the trust corpus by unanimous 2

approval  of  all  the  trustees.   On

18.10.1989, a Resolution No.112 was passed

by  the  trustees  where  it  was  unanimously

decided to authorise Col. Ravi Inder Singh,

Brig. Sukhjeet Singh, MVC, Maj. Gen. B.S.

Malik and Ris Maj. Roshanlal to act in the

name  of  the  Trust  and  on  behalf  of  the

trustees  to  sell  the  trust  farm  land

alongwith  buildings  thereon  situated  in

villages  Bichaie,  Phoolpur  and  Beehat.

Resolution also contained other conditions

for  executing  conveyance  and  for

registration of land.   

3.3 In  pursuance  of  the  Trust  Deed  and  the

Resolution dated 18.10.1989, a Memorandum of

Understanding (MOU) was entered with Scinde

Horse  Trust  and  respondent  No.2-Shri

Hargursharan Singh (complainant) and other

purchasers for purchase of the land.  The

MOU also contained a condition that payment

was required to be made by pay order or by

bank  draft  only  in  the  favour  of  Scinde 3

Horse Trust.  On 28.04.1991, another MOU was

executed  between  Shri  Hargursharan  Singh

(complainant) and other purchasers by which

complainant was to acquire 40 acres of land

at the rate of Rs.44,000/45,000/- per acre

of  land.   On  03.07.1991,  the  complainant

paid an amount of Rs.100,400/- to Col. Ravi

Inder Singh as an earnest money.   

3.4 The land being not sold to the complainant,

he  lodged  a  First  Information  Report  on

21.12.1991.  The case of complainant in the

First Information Report was that although

complainant agreed to purchase the land of

trust at the rate of Rs.44,000/45,000/- and

he paid a sum of Rs.100,400/- on 03.07.1991

to  Col.  Ravi  Inder  Singh  as  an  earnest

money, who assured him that sale shall be

executed  till  08.07.1991,  however,  till

date, sale has not been executed and accused

persons are not ready and willing to execute

the sale deed.  Complainant further came to

know that no permission for the sale of the 4

trust  land  has  been  given  to  the  accused

persons by the Court.  On those allegations,

FIR was lodged under Section 420/406 IPC.   

3.5 Almost similar allegations were made by one

Shri Fateh Singh against the same accused

wherein Shri Fateh Singh claimed that he has

paid an amount of Rs.75,600/- as an earnest

money to Col. Ravi Inder Singh on 03.07.1991

and sale having not been executed, the FIR

be registered.   

3.6 On FIR filed by the complainant, case Crime

No.  315/1991  was  registered  under  Section

420/406  IPC  and  on  FIR  submitted  by  Shri

Fateh Singh, case Crime No. 315-A of 1991

was  registered  under  Section  420/406  IPC.

On investigation, in both the crime numbers,

charge  sheet  was  submitted  under  Section

419, 420, 467, 471 and 120-B IPC.   

3.7 The appellant, who was one of the accused

alongwith  other  accused  filed  a  Criminal

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Misc. Application No. 6027 of 1993 and 6028

of  1993  praying  for  quashing  the  FIRs  in

case Crime No. 315 of 1991 and 315-A of 1991

and the orders summoning the accused persons

by Chief Judicial Magistrate, Rampur.   

3.8 The High Court while noticing the facts of

the case noted from both the complaints that

receipt of the amount of Rs.1,75,000/- from

Shri Hargursharan Singh and Shri Fateh Singh

is  admitted.   High  Court  further  noticed

that stamp papers worth Rs.1,75,000/- have

been  purchased.   High  Court  also  noticed

that it is admitted fact that permission to

sell trust land was applied in the Court of

District Judge, but the same was refused on

the ground that proper order in that respect

can be passed in proceedings under Section

92 of Code of Civil Procedure which was not

done.   The  High  Court  also  noticed  that

petitioners  obtained  information  from  two

eminent jurists, including Mr. Soli Sorabji,

who opined that the trustees have power to 6

sell  the  trust  land  in  the  instant  case.

The High Court after noticing the facts had

made following observations while deciding

the applications:-

“……………..after  going  through  the averments  with  annexure  it  appears that  there  was  no  dishonest misappropriation of the property by the  petitioners  as  entire  sum  has been  spent  for  the  purposes  of purchasing  stamp  papers.   An agreement  has  been  advanced,  that stamp  paper  could  not  be  encashed after a lapse of six months can in no way be attributed dishonest intention to cause harm or injury to respondent no.2 and that is also not the basic allegation  against  the  petitioners. Since there is no misappropriation of Rs.1,76,000/-  by  any  of  the petitioners, the charge u.S.406 IPC cannot  stand,  there  is  also  no allegation with regard to forgery of any document……………...”

3.9 High  Court  came  to  the  conclusion  that

charge  of  Conspiracy  under  Section  120-B

against  petitioners  (applicants)  fails.

High  Court  was  of  the  view  that  further

scrutiny of the factual material would be

required to be done at a stage of taking

evidence, at that time, contentions of both

the parties regarding elements of cheating 7

can  be  examined  with  reference  to  the

evidence.  High Court refrained to express

any  opinion  with  regard  to  above.   High

Court,  as  a  result  of  the  above

consideration, allowed the applications in

part,  set  aside  the  order  passed  by  the

Chief  Judicial  Magistrate.   High  Court

further  directed  that  Chief  Judicial

Magistrate  shall  take  cognizance  under

Section 420/34 IPC afresh against petitioner

Nos. 1 and 2 and issue process accordingly.

Prayer for quashing of the First Information

Report  and  the  Charge  Sheet  was  refused.

Petitioner  Nos.  3  and  4  were  also

discharged.  

3.10After  the  above  order  of  the  High  Court

dated  09.11.1995,  charges  were  framed  on

18.11.1996  under  Section  420/34  IPC.   On

17.11.2000,  prosecution  evidence  started.

Prosecution  completed  its  evidence  on

21.11.2012.  Thereafter, evidence of defence

was also recorded and trial court delivered 8

its  judgment  on  07.10.2013  convicting  the

appellant  under  Section  420  read  with

Section 34 IPC and awarded sentence of five

years  simple  imprisonment  and  fine  of

Rs.25,000/-.  The other co-accused Col. Ravi

Inder Singh having died during the trial,

the  appellant  was  taken  into  custody  and

sent to the prison.   

3.11On 08.10.2013, a Criminal Appeal No.57 of

2013 was filed by appellant in the Court of

the Sessions Judge, Rampur.  On 26.06.2014,

application  under  Section  391  Cr.P.C.(14

Kha)  was  filed  for  placing  on  record  the

said  Trust  Deed  dated  18.10.1989  and

Resolution No. 112.  In the application, it

was stated that Trust Deed was registered

with  the  Registrar  of  Delhi  and  the

photocopy of the Trust Deed is available on

record of the Lower Court being paper No.

30Kha/46, which has also been mentioned in

the impugned judgment.  Certified copy was

filed  alongwith  the  application  with  a 9

prayer that the document be kindly taken on

record and certified copy of the Resolution

passed by the trustees was filed, which was

prayed to be taken on record.   

3.12Another  application  under  Section  391

Cr.P.C.  (17  Kha)  was  filed  on  15.07.2014

praying for summoning the witnesses to prove

the  Trust  Deed  dated  18.10.1989  and

Resolution  No.112.  Both  the  applications

came for consideration before the District

Judge,  who  by  its  order  dated  02.11.2015

rejected  both  the  applications.   The

Appellate  Court  opined  that  lower  court’s

record shows that case is very old and it

remained pending in the trial for several

years.  Sufficient opportunity was given to

the accused-appellant to produce evidence in

defence.   No  sufficient  ground  has  been

shown  why  these  documents  were  not  got

proved  in  the  trial  court.   Hence,  the

applications deserve to be rejected.   

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3.13Against  the  order  dated  02.11.2015,  an

application  under  Section  482  Cr.P.C.  was

filed in the High Court by the applicant,

which has been rejected by the High Court

vide its impugned judgment dated 17.01.2017.

High  Court  was  of  the  view  that  the

applications  filed  by  the  applicant  for

filing additional evidence at such a belated

stage  appears  to  be  with  some  ulterior

malafide motive or for delaying the decision

of  the  appeal  to  eternity.  High  Court

rejected the application filed under Section

482  Cr.P.C.   Feeling  aggrieved,  the

appellant has come up in this appeal.    

4. We  have  heard  Shri  R.S.  Suri,  learned  senior

counsel for the appellant. Shri Ratnakar Das, learned

counsel had appeared on behalf of the State of U.P.

Shri Hargursharan Singh, respondent No.3-complainant

had appeared in person and has been heard at length.  

5. Shri R.S. Suri, learned senior counsel for the

appellant  submits  that  Appellate  Court  committed

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error  in  rejecting  the  applications  filed  by  the

appellant under Section 391 Cr.P.C.  Learned senior

counsel submits that the appellant before this Court

is  a  retired  Brigadier  of  Indian  Army,  who  had

distinguished and meritorious services in the Armed

Forces.  He was also awarded Maha Vir Chakra in the

1971 war.  The appellant was trustee of the trust and

was authorised by the trust alongwith other members

to sell the trust land.  Appellant did not receive a

single rupee from the complainants.  The complainant

(Shri Hargursharan Singh) has claimed to have paid

Rs.100,400/-to  Col.  Ravi  Inder  Singh  and  another

complainant  (Fateh  Singh)  had  paid  Rs.75,600/-  to

Col.  Ravi  Inder  Singh.   Stamp  Duty  amounting  to

Rs.1,75,000/- was purchased which document was on the

record.  No amount was misappropriated or used by the

appellant or trust.  The allegation of cheating or

fraud made against the appellant is wholly false and

incorrect.  The second Trust Deed dated 18.10.1989

was  also  on  the  record  (photocopy  filed  by  the

complainant himself), which has been noticed by the

trial court in its judgment as paper No. 30Kha/46.

Due  to  lapse  on  part  of  the  appellant  and  his 12

counsel,  above  Trust  Deed  and  the  Resolution

authorising the trustees could not be proved before

the trial court, whereas the above Trust Deed and

Resolution were noticed and proved in the case Crime

No. 315-A of 1991 filed by Shri Fateh Singh.   

6. Learned senior counsel further submits that in

case Crime No. 315-A of 1991, which was based on the

same  allegations  against  the  appellant,  the  trial

court vide its judgment and order dated 30.11.2015

had  acquitted  the  appellant  from  the  charge  under

Section 420/34 IPC.  The trial court in the above

case has noticed the second Trust Deed as well as

Resolution No.112, which were duly proved.  It is

submitted that it is lapse that the second Trust Deed

and Resolution, which were basis for entering into

MOU with complainant for sale of trust land could not

be proved, whereas they were referred to and were

part of the record and proved in other case.  Shri

Suri submits that Appellate Court committed error in

not exercising jurisdiction under Section 391 Cr.P.C.

in  accepting  the  documents  on  record  and  not

permitting the appellant to lead evidence to prove 13

the said documents, which has resulted in failure of

justice.   Shri  Suri  further  submits  that  the  FIR

lodged  by  the  complainant  was  another  example  of

malicious prosecution of the appellant.  He submits

that this Court in Parminder Kaur Vs. State of Uttar

Pradesh and Another, (2010) 1 SCC 322: AIR 2010 SC

840,  while  quashing  the  proceeding  arisen  out  of

complaint lodged by Hargursharan Singh has observed

that  Hargursharan  Singh  lodged  malicious  and

vengeance full prosecution case against his sister-

in-law, which was quashed by this Court.   

7. Shri  Suri  further  submits  that  the  Appellate

Court for finding out and to ensure that no innocent

person is convicted, ought to have given opportunity

to the appellant to lead evidence to prove the second

Trust Deed and the Resolution, denial of which has

caused immense injustice.   

8. Shri Ratnakar Das, learned counsel appearing for

the State of U.P. submits that power under Section

391 Cr.P.C. has to be exercised sparingly and in the

ends  of  justice.   He  submits  that  permitting  the

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appellant to lead evidence to prove the second Trust

Deed and Resolution will involve a fresh trial.  He

further submits that even if a certified copy of the

Trust Deed dated 18.10.1989 is taken on record, that

shall not serve any purpose.  He candidly submits

that he has no objection if documents are accepted on

record but given opportunity to lead evidence shall

consume a lot of time, which shall delay the disposal

of the appeal.  He submits that even in the prayer

made in the application (17-Kha), no witness has been

listed, who can prove the documents.  The mere fact

that registration of documents is proved, shall not

mean that contents are also proved.   

9. Shri Hargursharan Singh, appearing in-person has

supported  the  order  passed  by  the  Session  Judge

rejecting  the  application  filed  under  Section  391

Cr.P.C. by the appellant.  He submits that this SLP

has been filed only with intent to delay the disposal

of  the  criminal  appeal.   He  submits  that  the

appellant  had  not  obtained  permission  from  the

District Judge for sale of the land and the District

Judge had rejected the application on 27.10.1989 and

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despite  the  rejection  of  the  application,  the

appellant and other members of the trust proceeded

with their design to sell the land, which led the

complainant  to  pay  amount  of  Rs.100,400/-  to  Col.

Ravi Inder Singh.  The appellant was convicted on

07.10.2013  and  the  application  under  Section  391

Cr.P.C. was filed after nine months.  Opportunity to

lead  evidence  in  the  defence  was  availed  by  the

appellant.  The  Session  Judge  has  rejected  the

application filed under Section 391 Cr.P.C. by giving

cogent reasons.  High Court has also rightly upheld

the said order, which needs no interference by this

Court.   The  application  has  been  filed  by  the

appellant just to cover his offence. The appellant

has  been  approbating  and  reprobating  at  the  same

time.  The document dated 18.10.1989 is already on

the file and hence there is no necessity to bring it

again.   Original  Trust  Deed  was  registered  on

27.06.1959 at Rampur, which is still valid.  In spite

of  permission  having  been  refused,  the  appellants

have been contending that they have still right to

sell the property.  Shri Hargursharan Singh further

submitted  that  appellant  had  committed  forgery  and 16

fraud.  He has referred to Page 28 of the paperbook,

Para No.8 and submitted that in para No.8 the word

“not” has been deleted from Clause 8, which shows

that  the  appellants  have  not  come  with  the  clean

hands before this Court and they have concealed the

true clause of Trust Deed from this Court also.  He

further submits that this Court should monitor the

hearing  of  the  Criminal  Appeal  pending  before

Sessions Judge.     

10. We have considered the submissions of the parties

and have perused the records.  

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?  

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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) 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

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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 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,

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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

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

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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 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

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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 in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard.”

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.   

17. Now, we revert to the facts of the present case

to examine as to whether present was the case for

exercise of the power by the Appellate Court under

Section 391 Cr.P.C. to permit adducing the additional

evidence at the appellate stage.  The facts as noted

above indicate that the trust is admittedly the owner

of  agricultural  land  in  Village  Bichaie.   The

complainant has been in possession of large number of

agricultural  lands  as  thekedar  of  the  trust  since

1975,  according  to  his  own  case,  which  he  even

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mentioned  in  the  First  Information  Report.   The

application under Section 391 Cr.P.C. was made in the

Appellate Court to accept certified copy of the Trust

Deed  dated  18.10.1989  and  the  Resolution  No.  112

dated  18.10.1989  and  permitting  the  appellant  to

prove  the  said  document  by  leading  oral  evidence.

The  reference  of  Trust  Deed  has  been  made  by  the

trial court in its judgment dated 07.10.2013.  The

trial court in its judgment had observed “the copy of

the  Trust  Deed  dated  18.10.1989  is  available  on

record  being  paper  No.30Kha/46”.   The  trial  court

further has observed that “it is pertinent to mention

here that the accused had not proved the Trust Deed

dated 18.10.1989 by way of evidence”.       

18. What  was  available  on  the  record  was  the

photocopy of the Trust Deed.  Due to non-proving of

the Trust Deed, the trial court has not adverted to

the  Trust  Deed  and  the  Resolution,  which  were

relevant to understand and know the conduct of the

appellant and other trustees for entering in the MOUs

for sale of agricultural land.  The facts as noted

above indicate that prosecution started recording its 23

evidence  on  17.11.2000,  which  was  completed  on

21.11.2012.  A period of twelve years was taken by

the  prosecution  to  lead  its  evidence  and  after

21.11.2012, the judgment was delivered on 07.10.2013.

The  appellant  was  convicted  for  offences  under

Section  420/34  IPC  accepting  the  charge  that

complainant  was  cheated  with  regard  to  sale  of

agricultural land of the Trust.  The High Court while

rejecting  the  application  filed  under  Section  482

Cr.P.C.  of  the  appellant  has  made  following

observations:-

“……….The present exercise initiated by the applicant for filing additional evidence at such  a  belated  stage  appears  to  be  with some ulterior malafide motive or delaying the decision of the appeal to eternity……..”

19. Both the above reasons given by the High Court

and  relied  by  the  High  Court  in  rejecting  the

application  filed  under  Section  482  are  unfounded.

The  first  observation  of  the  High  Court  is  that

filing  of  additional  evidence  at  such  a  belated

stage. In the facts of the present case we do not

approve  the  above  observation.  When  the  Appellate

Court  has  been  given  power  to  lead  additional

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evidence, the observation that it is belated stage

was  uncalled  for.   Appellant  was  convicted  on

07.10.2013 and appeal was immediately filed on the

next  date,  i.e.  08.10.2013.     It  was  not  even

mentioned by the High Court that there is anything on

record to indicate that appeal was being heard and at

this stage the application under     Section 391

Cr.P.C. was filed, calling the application as filed

at belated stage itself was unjustified.  Further,

the observation of the High Court that application

was  filed  with  some  ulterior  malafide  motive also

does not commend us.  The appellant had already been

convicted by the trial court, the charge was cheating

the complainant with regard to sale of agricultural

land  of  the  trust.   The  second  Trust  Deed  dated

18.10.1989, which was on record and referred to by

the trial court and was refused to look into on the

ground  that  it  was  not  proved  by  the  appellant.

Filing of the application before the High Court to

accept the certified copy of the Trust Deed and the

Resolution and permit the appellant to lead evidence

can in no manner be said to be malafide motive of the

accused, who had been convicted in the appeal, has 25

right  to  take  all  the  grounds  and  also  lead

additional  evidence,  which  in  accordance  with  the

Appellate Court is necessary in deciding the appeal.

As noted above, this Court has laid down that when it

becomes necessary to take additional evidence, cannot

be enlisted or enumerated in any fixed formula.  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.  Present is a case where

it was due to lapse on the part of the appellant and

his counsel that the second Trust Deed, which was

basis for taking steps for sale of the land could not

be proved.   

20. The second observation of the High Court is that

the application to take additional evidence at the

appellate stage is filed by appellant for delaying

the decision of the appeal to eternity, we fail to

see that when prosecution took twelve years’ time in

leading  evidence  before  the  trial  court  and  the

judgment by trial court was delivered on 07.10.2013,

the appeal was filed on 08.10.2013, how can appellant

be castigated with the allegation that he intended to 26

delay the appeal to eternity.  The observation was

unduly misplaced and incorrect.  When Statute grants

right to appeal to an accused, he has right to take

all  steps  and  take  benefit  of  all  powers  of  the

Appellate  Court  in  the  ends  of  the  justice.  In  a

criminal case Appellate Court has to consider as to

whether conviction of the accused is sustainable or

the appellant has made out a case for acquittal.  The

endeavour of all Courts has to reach to truth and

justice.  The case of the complainant also has been

that it is only after execution of the Trust Deed

that talks regarding sale of the agricultural land

was initiated.  Trust Deed and the Resolution, which

are foundation and basis for the start of the process

of the sale of the land were documents, which ought

to have been permitted to be proved to arrive at any

conclusion to find out the criminal intent, if any,

on the part of the appellant.

21. It is further relevant to notice that in case

Crime No. 315-A of 1991 filed by Shri Fateh Singh,

who was also one of the purchasers and lodged the FIR

on same allegations.  In the said case, the second 27

Trust Deed dated 18.10.1989 was filed and proved and

ultimately, the appellant has been acquitted in the

said  case  by  judgment  dated  30.11.2015,  which  has

been  brought  on  record  as  Annexure  P-14.   In  the

other  criminal  case,  which  was  on  the  same

allegations and which were also based on same MOU

regarding sale of agricultural land, where amount of

Rs.75,600/- was also paid by Shri Fateh Singh, on the

same  date,  the  Trust  Deed  was  filed  and  proved

relying on which acquittal of the appellant has been

recorded.   It  has  been  further  submitted  by  the

appellant  that  reference  of  the  judgment  of  the

acquittal dated 30.11.2015 has also been made before

the High Court, but High Court did not advert to the

said judgment.   

22. In the facts of the present case, we are of the

view  that  Appellate  Court  committed  error  in  not

exercising jurisdiction under Section 391 Cr.P.C. in

accepting the second Trust Deed dated 18.10.1989 and

the Resolution No.112 dated 18.10.1989 and refusing

the  appellant  to  lead  evidence  to  prove  the

documents.   

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23. Shri Hargursharan Singh has also contended before

us  that  the  appellants  are  not  entitled  for  any

relief since they have not filed correct copy of the

Trust  Deed  before  this  Court  and  are  trying  to

mislead this Court.  He has referred to Clause (8) of

the Trust Deed at Page 28 of the paperbook, where,

according  to  him,  the  word  “not”  has  not  been

deliberately  typed  in  Clause  (8).   Shri  Suri

appearing for the appellant has very fairly submitted

that omission of word “not” in Para No.(8) is only an

inadvertent  mistake  of  typing,  which  could  not  be

checked by the appellant.  When the certified copy of

the  Trust  Deed  has  already  been  filed  before  the

Appellate Court by the appellant, we fail to see what

will be gained by the appellant by reproducing an

incorrect clause of the Trust Deed.  We are satisfied

that non-mention of the word “not” is only a mistake,

which is neither deliberate nor with any intent to

mislead  this  Court.   The  complainant  cannot  be

allowed to make any capital of such mistake.   

24. We,  thus,  come  to  the  conclusion  that  in  the

present  case,  the  Appellate  Court  has  failed  to 29

exercise its jurisdiction under Section 391 Cr.P.C.

and has committed error in rejecting the applications

under Section 391 Cr.P.C. (14 Kha and 17 Kha).  The

order of the Appellate Court dated 02.11.2015 as well

as order of the High Court dated 15.03.2016 are set

aside.   The  applications  14  Kha  and  17  Kha  stand

allowed.   We  further  direct  that  appellant  be

permitted to lead oral evidence to prove the contents

of the Deed dated 18.10.1989 by leading at-least one

witness.   The  Appellate  Court  shall  receive  the

additional  evidence  as  directed  above  and  complete

the  exercise  within  six  months  from  the  date  of

production of certified copy of this order before it.

The  Criminal  Appeal,  thereafter  shall  be  decided

expeditiously.  The appeal is allowed accordingly.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  January 24, 2019.        

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