Power to record additional evidence should only be exercised when the party was prevented from presenting the evidence in the trial: Supreme Court

Case title: Ajitsinh Chehuji Rathod vs State of Gujarat & Anr.

Case no.: SLP(Crl.) No(s). 16641 of 2023

Decided on: 29.01.2024

Quorum: Hon’ble Justice B.R Gavai, Hon’ble Justice Sandeep Mehta


The current SLP appeal is based on a Gujarat High Court order. The appellant was charged with violating Section 138 of the Negotiable Instruments Act, 1881, alleging that a cheque in the amount of Rs. 10 lakhs issued by the appellant in favour of the complainant Shri Mahadevsinh Cahndaasinh Champavat was dishonoured “for insufficient funds and account dormant” when presented in the bank.

During the trial, the appellant filed an application with the learned trial Court requesting that the cheque be sent to a handwriting expert for comparison of the handwriting and signature appearing on it, claiming that his signatures had been forged on the cheque in question. The trial Court denied the application and convicted the appellant. On appeal, the high court rejected and upheld the conviction. As a result, the Supreme Court is hearing the appeal.


The appellant filed the appeal with an application under Section 391 CrPC. According to Section 391 of the CrPC, the power to record additional evidence should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence, or when the facts giving rise to such prayer were discovered at a later stage during the pendency of the appeal and that non-recording of such evidence may result in the failure of justice.

The NI Act’s Section 118 Subclause (e) clearly presumes that endorsements made on a negotiable instrument are made in the order that they appear on the document. Therefore, the holder of the disputed cheque, who is the complainant in this instance, benefits from the presumption that the endorsements on it are authentic.


After comparing the admitted signature of the accused appellant with the signature on the disputed cheque, the appellant filed an application to have the handwriting expert’s opinion. In the aforementioned application, there was also a request to summon the relevant Post Office officer in order to support the defence’s argument that the accused appellant never received the notice required by Section 138 of the NI Act.


The court ruled that a certified copy of a bank-issued document is admissible under the Bankers’ Books Evidence Act of 1891 even without any formal proof. Thus, we believe that if the appellant wanted to prove that the signatures on the cheque issued from his account were not genuine, he could have obtained a certified copy of his specimen signatures from the Bank and made a request to summon the concerned Bank official in defence to give evidence about the genuineness or otherwise of the signature on the cheque.

The court stated that, despite having the opportunity, the accused appellant did not question the bank official examined in defence to establish his plea of purported mismatch of signature on the cheque in question, and thus, they are of the firm opinion that the appellate Court was not required to come to the appellant’s aid and assistance in collecting defence evidence at his behest. The presumptions under the NI Act, while rebuttable, work in favour of the complainant. As a result, it is up to the accused to rebut such presumptions by presenting appropriate defence evidence, and the Court cannot be expected to assist the accused in gathering evidence on his behalf. Consequently, the appeal was dismissed.



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Written by – Surya Venkata Sujith


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