Section 391 additional evidence cannot be used routinely to fill defence lacunae.

The complainant alleged that the first petitioner company, through the second petitioner, purchased goods on credit and issued a cheque for ₹4,00,000, which was dishonoured for insufficient funds.

The petitioners were convicted under Section 138 of the Negotiable Instruments Act; the second petitioner was sentenced to two years’ simple imprisonment and a fine of twice the cheque amount.

In their pending appeal, the petitioners applied under Section 391 Cr.P.C. to examine a witness and produce a bank statement said to show repayment of ₹9,00,000, together with invoices said to contain an incorrect VAT number.

The appellate court dismissed that application, and the petitioners sought to set aside its order.

1. Whether the appellate court should permit additional evidence under Section 391 Cr.P.C. where the proposed witness and documents were available during trial but were not produced.

2. Whether allowing the application was necessary for a fair and just determination of the appeal, or would instead permit the petitioners to fill a lacuna in their defence.

Section 391 Cr.P.C. empowers an appellate court, for recorded reasons, to take additional evidence itself or direct a subordinate court to do so. The power is to be exercised cautiously and where additional evidence is necessary for a just decision; it is not to be used routinely to fill gaps in a party’s case or to delay proceedings.

The judgment also records that the petition was brought under Section 528 BNSS. No judicial precedents are cited.

The court noted that the proposed documents were available to the petitioners at trial, that they had recalled and cross-examined P.W.1 and marked Exs. D1–D4, and that they then reported having no defence evidence.

The petitioners had neither examined the proposed witness despite having the opportunity nor provided a satisfactory explanation for their failure to do so. The court therefore found that the stated grounds did not justify additional evidence under Section 391 and that the application risked filling a defence lacuna or prolonging the proceedings.

It dismissed the Criminal Original Petition challenging the appellate court’s order and closed the connected miscellaneous petition.