Smt Mangamma vs Shri Muniyappa
2021 Latest Caselaw 1349 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JANUARY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.6873/2020

BETWEEN:

SMT. MANGAMMA
W/O. MUNIRAJ @ BHOR
AGED ABOUT 47 YEARS
R/AT H.NO.105, TUBARAHALLI
RAMAGONDANAHALLI POST
BENGALURU - 560 066.                           ... PETITIONER

          (BY SRI. SRIKANTESHWAR N.V., ADVOCATE)
AND:

SHRI. MUNIYAPPA
S/O. LATE LINGAPPA
AGED ABOUT 69 YEARS
R/AT No.118, CHARITHA CLASSIC APARTMENT
ATTACHED HOUSE, 1ST MAIN
TUBARAHALLI
RAMAGONDANAHALLI POST
BENGALURU - 560 066.                       ... RESPONDENT

              (BY SRI. THIPPESWAMY J., HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER DATED
02.03.2020   PASSED   BY  THE    APPELLATE  COURT   IN
CRL.A.NO.25170/2018 DISMISSING I.A.No.4, FILED UNDER
SECTION 311 OF CR.P.C. READ WITH SECTION 391 AND
CONSEQUENTLY ALLOW THE PETITION AS PRAYED FOR.
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     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This petition is filed under Section 482 of Cr.P.C, praying

this Court to quash the impugned order dated 02.03.2020

passed by the Appellate Court in Criminal Appeal

No.25170/2018, dismissing I.A.No.4 filed under Section 311 of

Cr.P.C, read with Section 391 of Cr.P.C.

2. The factual matrix of the case is that the respondent

herein had filed a complaint under Section 200 of Cr.P.C. for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 ('NI Act' for short). The trial Judge has

taken the cognizance and thereafter issued the process. The

Trial Judge after considering the material on record convicted the

accused. Hence, present petitioner has filed an appeal before the

Appellate Court. In the Appellate Court, she filed an application

under Section 311 of Cr.P.C. read with Section 391 of Cr.P.C,

praying the Court to summon the witness Smt.Gowramma and

the said witness is a material witness to prove the defense of the

accused. The Appellate Court after hearing both the parties

rejected the application vide order dated 02.03.2020 and came

to the conclusion that the appellant cannot fill up the lacuna by

summoning the witness before the Appellate Court when the

additional documents have not been placed and the appellant

has not made any efforts to examine the witness before the Trial

Court. The Appellate Court also while rejecting the application,

referred to the Judgments of the Apex Court with regard to

scope of Section 311 of Cr.P.C, read with Section 391 of Cr.P.C,

in the case of Rambhau and another v. State of

Maharashtra reported in (2001)4 Supreme Court Cases

759, and also relied upon the Judgment in the case of Zahira

Habibulla H.Sheikh and another v. State of Gujarth and

others reported in (2004) 4 Supreme Court Cases 158.

Having referred both the judgments formed an opinion that

Section 311 is not to fill up lacuna, but to sub serve the ends of

justice. The Court has to keep these salutary principles in view.

Though wide discretion is conferred on the Court, the same has

to be exercised judicially. The Apex Court also in the Judgment

expressed the similar view with regard to Section 391 of Cr.P.C.

is concerned and such an application has to be considered only

in exceptional cases and it is not a general rule.

3. Learned counsel appearing for the petitioner would

vehemently contend that the petitioner could not prove her

defense and examine the said Gowramma and the same is

essential in the ends of justice. The learned counsel also would

submit that it is not filling up of the lacuna.

4. Per contra, learned counsel appearing for the

respondent would contend that the learned Magistrate has

passed the detailed order while rejecting the application. It is

also contended that no documents are placed before the

Appellate Court to bring the same as additional evidence before

the Appellate Court. When such being the case, when the

opportunity was given to the appellant before the Trial Court to

substantiate her defense, when she was not exercised her right,

there cannot be an order to summoning the witness in the

Appellate Court.

5. Having heard the submissions of the respective

counsel, there is no dispute with regard to the fact that an

opportunity was given to the petitioner herein before the Trial

Court. The learned Magistrate only after closure of the evidence

of the defense after examining D.W.1, passed an order. D.W.1-

Smt.Mangamma was examined before the Trial Court and relied

upon the documents-Exs.D1 and D2. When the petitioner

suffered the Judgment only an after thought made an application

before the Appellate Court to examine the said Smt. Gowramma.

It is settled law that the Appellate Court also cannot exercise its

discretion to fill up the lacuna and the same has to sub serve the

ends of justice. It is not the case of the petitioner that she has

produced some documents and additional evidence is necessary

in order to decide the matter on merits and only contend that

the said Gowramma is essential to decide the issue in the

matter. When the petitioner has not utilized the opportunity

before the Trial Court, she cannot fill up the lacuna as observed

by the Court.

6. In view of the discussions made above, I pass the

following:

ORDER

The petition is rejected.

In view of rejection of the main petition, I.A.No.1/2020 for

stay does not survive for consideration and the same stands

disposed of.

Sd/-

JUDGE

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