- (1.)This petition is filed by the appellant/accused/petitioner questioning order dated 08.03.2010 passed in Criminal M.P.No.40 of 2010 in Criminal Appeal No.275 of 2009 by the IX Additional Sessions Judge (Fast Track Court), Guntur by which the lower court dismissed the petition filed under Section 391 Criminal Procedure Code refusing permission to lead additional evidence by way of examining Branch Manager, Andhra Bank, Labbipet, Vijayawada and Kundaravalli Krishna Murty.
(2.)The petitioner/accused was convicted and sentenced by the trial court for offence under Section 138 of the Negotiable Instruments Act (in short, the Act). As against the said conviction and sentence, the accused filed the appeal before the lower appellate court. In that appeal, the petitioner filed petition under Section 391 Criminal Procedure Code which ended in dismissal.
(3.)Firstly, it is contention of the petitioner that cheque in question was not drawn by him on his account and that it was drawn on account of Bhavana Sai Associates which is a partnership concern and that therefore requirements of Section 138 of the Act are not satisfied. To prove the said fact that the cheque in question was drawn on account of partnership firm and not on individual account of the petitioner, the petitioner wants to examine Branch Manager of Andhra Bank, Labbipet, Vijaywada as additional witness in the appeal. At the out set, it may be noted that the said plea was not taken by the accused/petitioner in the trial court and no endeavor was made by the accused to prove the said fact when the matter was pending before the trial court. For the first time in the appeal, the petitioner/accused wants to raise the said point. It is contended that it is a pure question of law which can be raised in the appeal. I do not agree that the above point is a pure question of law. If it is a pure question of law, then it can be disposed of on evidence already available on record. The fact that the petitioner wants to examine an additional witness to prove facts required for the said plea itself indicates that it is not a pure question of law. It is undoubtedly a mixed question of fact and law. It is well settled law that no party can be permitted to raise a mixed question of fact and law for the first time in appeal. When such plea cannot be raised by the petitioner/appellant for the first time in the appeal, the question of permitting the petitioner to lead additional evidence in the appeal by way of examining the witness and marking certain documents in support of that plea, will not arise at all. It is contended that due to lack of proper legal advice in the trial court, the said plea could not be raised in the trail court. For whatever reasons the petitioner could not raise the plea in the trial court, for the first time the petitioner cannot raise the same plea in the appellate court because it is a mixed question of fact and law.