Power Under Section 391 CrPC To Permit Additional Evidence Must Be Exercised When Necessary To Prevent Failure Of Justice: Telangana High Court
Sanchayita Lahkar
The Telangana High Court Single Bench of Justice Tirumala Devi Eada allowed a criminal petition and set aside the order dated 25.07.2025 passed by the III Additional District Judge, L.B. Nagar, which had refused to admit additional evidence in a cheque dishonour appeal. The Court held that the power under Section 391 CrPC must be exercised when additional evidence is necessary to secure the ends of justice and to prevent failure of justice, permitting the petitioner-accused to place on record documents that came to light during the pendency of the appeal.
The criminal petition arose from the dismissal of an application filed under Section 391 Cr.P.C. by an accused in a pending criminal appeal against her conviction under Section 138 of the Negotiable Instruments Act. The de facto complainant had instituted proceedings alleging dishonour of cheques. The trial court convicted the accused, following which she preferred an appeal before the appellate court.
During the pendency of the appeal, the accused filed an application seeking permission to adduce additional evidence, including account books and cheque records allegedly maintained by her husband. She contended that upon verification of firm accounts from 2012 to 2016, she discovered that the cheque book containing the subject cheques was missing and that only two cheques had been utilized, which, according to her, were in the custody of the complainant. The appellate court dismissed the application, relying on precedent concerning the limited scope of Section 391 Cr.P.C. Aggrieved by that dismissal, the accused approached the High Court.
The Court extracted Section 391 Cr.P.C., which provides: “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.” It further noted: “The said section envisages that the additional evidence can be adduced before the appellate court in certain circumstances.”
Referring to the appellate court’s reliance on precedent, the High Court recorded that it was held therein that “if the appellate court considers certain evidence is necessary and is unable to give a correct finding then only it would be justified in taking additional evidence under this section.” It also noted the observation that “the additional evidence does not mean to fill up the gap in prosecution’s case and it can be taken in exceptional circumstances to remove an irregularity where the circumstances so warrant in public interest.”
The High Court considered the appellate court’s reasoning regarding the proposed ledgers and recorded that the appellate court had observed that even if the ledgers were produced and showed the handwriting of the accused’s husband, “still that is not going to infer anything to say that the complainant was in the custody of the cheques pertaining the accused.” It also noted the observation that “even in such circumstances, it cannot be held that the complainant has unlawfully gained the custody of the two cheques.”
Relying on precedent placed before it, the Court recorded that power under Section 391 Cr.P.C. “should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice.” It further held that “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 Court also stated the principle 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 Court directed: “the petition needs to be allowed by setting aside the impugned order of the appellate court. Accordingly, the Criminal Petition is allowed setting aside the order dated 25.07.2025 passed in Crl.M.P. No.22 of 2023 in Crl.A. No.859 of 2017 by the III Additional District Judge, L.B. Nagar, R.R. District and the petition filed by the petitioner under Section 391 Cr.P.C., stands allowed and the petitioner is permitted to adduce additional evidence. Miscellaneous Petitions, pending if any, shall stand closed.”
Advocates Representing the Parties:
For the Petitioners: Mr. V. Venkata Subramanyam, learned counsel
For the Respondents: Sri A. Ravinder Reddy, Senior Counsel, representing Sri Ch. Venkateshwara Reddy.
Case Number: Criminal Petition No.11058 of 2025
Bench: Justice Tirumala Devi Eada
