1. This criminal petition is directed against an order dated 31-8-2012 passed by the learned JMFC, Shimoga, in C.C.No.1414/2009, by which, an application filed by the accused under Ss.204 and 244 Cr.p.C., seeking deletion/discarding of the evidence of Sri Mahaveer – PW.2, on the ground that his name was not shown in the list of witnesses and permission of the Court for his examination was not obtained.

2. In order to appreciate the controversy involved in the matter, brief facts of the case may be enumerated:

The petitioner is being prosecuted for the offence under S.138 of the Negotiable Instruments Act (“the Act” for short). A private complaint under S.200 Cr.P.C., was filed by the respondent. His sworn statement was recorded and after noticing that, he has no more witnesses at that stage, by an order dated 03.10.2002, the learned Magistrate ordered for registration of a case for the offence punishable under S.138 of the Act. Summons having been issued, accused appeared and was enlarged on bail. Charge was denied by the accused. During the course of trial, the complainant completed the evidence i.e., his own examination, cross-examination and re-examination. On 31.07.2012, the case was adjourned to 06.08.2012 for further evidence of the complainant. On 06.08.2012, one Mahaveer was examined in chief and the case was adjourned for cross-examination. On the adjourned date, an application was filed by the accused under Ss.204 and 244 Cr.P.C., seeking deletion / striking evidence of PW.2. Learned Trial Judge, finding that the application has been filed on technical ground and since prejudice if any caused to the accused was not shown, held that it is unnecessary to expunge evidence of PW.2. Consequently, the application was rejected. Said order has been assailed in this petition.

3. Appearing for the petitioner, Sri R.Bhadrinath, learned counsel, contended that the Trial Court has committed illegality in dismissing the application. He submitted that the Trial Court has failed to take into consideration the scope of Ss.204, 231, 242, 246 and 254 Cr.P.C. and hence, the impugned order is perverse and illegal. By relying upon the decision in the case of FAKIRAPPA VS. SHIDDALINGAPPA, (2002 (1) KCCR 53), he contended that, S.204(2) Cr.P.C. being mandatory, there being non-compliance, impugned order illegal, interference is warranted.

4. Perused the record. The questions which arises for consideration are:

(i) Whether the complainant can file a supplementary list of witnesses and examine them?

(ii) Whether the Trial Court has permitted the examination of PW-2 in exercise of the power under S.311 Cr.P.C.?

5. Prosecution was launched by the respondent under S.138 of the Act. Complaint contains the list of two witnesses. Complainant completed his evidence. Case which was posted on 31.07.2012, was adjourned to 06.08.2012 for further evidence of the complainant. In the presence of the accused, Mr. Mahaveer, who was not cited as a witness in the complaint was examined as PW.2 and the case was adjourned for his cross-examination. The accused, on the adjourned date, filed application under Ss.204 and 244 Cr.P.C. seeking to delete / discard the evidence of PW.2.

6. Learned Trial Judge by noticing that the case is one under S.138 of the Act and needs to be tried by adopting summary procedure and as per the request of the accused, the case was converted into a warrant trial and therefore, sufficient opportunity should be given to both the parties to lead their evidence in detail, found the application to be untenable and passed an order of rejection.

7. In the case of T.M.JAKKANNA @ TIPPANNA MALLAPPA JAKKANNAVAR AND ANOTHER VS. M/S RAJALAXMI TRADERS, (ILR 2000 KAR 3881), it has been held that, even if there is no list of witnesses filed by the complainant, it only means, there is no witness to examine on his behalf and if he makes an application with the list of witnesses showing sufficient cause for non-filing of the list at the time of