Code of Criminal Procedure [V of 1898] Sections 375, 423, 428 and 439
The High Court Division even sitting as a revisional court, however, invoking the revisional Jurisdiction under section 439 of the Cr.P.C. has got empowerment by the legislature about to exercise any of the power of the appellate Court conferred under section 423 and 428 of the Cr.P.C, as well.
The Section 375 of the Cr.P.C. also empowers the High Court Division to direct further inquiry to be made or additional evidence to be taken when a proceeding submitted before the High Court Division and while it thinks that a further inquiry should be made into or additional evidence taken upon, any point bearing upon, the guilt or innocence of the convicted person(s). It may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session. The section 423 of the Cr.P.C. while empowers the appellate court to exercise its certain power in disposing of the appeal; side by side, the legislature under sub-section (1)(b) of the said section also empowers the appellate Court as well as the revisional Court also invoking jurisdiction under Section 439 of the Cr.P.C. to do the following acts:- in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or sent for retrial." [2022] 24 ALR (HCD) 113]
Negotiable Instruments Act [XXVI of 1881]
Section 138 read with
Code of Criminal Procedure [V of 1898]
Sections 375, 423, 428, 435 and 439
Additional evidence
The High Court Division observed that since the presumption raised about the defective consideration as written in the cheque in question, that has to be proved or disproved by the respective party and in proving their own case they have to be given a chance again to proof their own claim by producing their supporting respective evidence. And to that extent, the High Court Division is inclined to send the case back to the appellate Court below who is the last Court of fact and has ignored the certain admitted facts of the case as well as the grounds taken and placed in appeal before him for deciding the said appeal and as such, he is bound to discover the actual truth as behind the allegation brought in the case and then upon taking the additional evidence he has to make a decision thereto in accordance with law; however, keeping in mind the observations as made above by our apex Court and inasmuch as of the apex Court of this sub-continent. Hence, by the empowerment of section 439 read with section 375 inasmuch as following the provisions of section 423 & 428 of the Cr.P.C the High Court Division is inclined to send the case back to the appellate Court below to hold retrial of the case for taking decision upon enabling both the affected parties to place their additional evidence about to prove their own case as well as to prove and disprove the presumption raised herein. [2022] 24 ALR (HCD) 113]
