Section 311 Cr.P.C. cannot be used to fill lacunae in evidence.

Vijay Bishnoi, J.

This criminal misc. petition under Section 482 Cr.P.C., 1973 is filed by the petitioner being aggrieved with the order dated 07.09.2017 passed by the Special Judicial Magistrate N.I Act Case, Chittorgarh (hereinafter to be referred as 'the trial court') in regular criminal case No.230/17 whereby, the application filed by the petitioner under Section 311 Cr.P.C., 1973 has been dismissed.

2. The brief facts of the case are that the petitioner filed a complaint against the respondent under Section 138 of the Negotiable Instrument Act, 1881. In the said proceedings the petitioner was granted opportunities to produce its evidence and it got examined PW-1 - Manoj Kumar in support of the complaint. Thereafter on 22.05.2017, the evidence of the prosecution was closed and the matter was fixed for recording of statement of the accused-respondent. On 03.06.2017, the statements of accused respondent were recorded and the evidence of defence was closed on 08.07.2017, thereafter the matter was fixed for final arguments on 09.08.2017.

3. Again the next date for final arguments was fixed on 18.08.2017 and at this stage the petitioner preferred an application under Section 311 Cr.P.C., 1973 with a prayer for recalling one Mr. Om Prakash Ajmera for giving his evidence, who is the Bank Manager at that relevant time.

4. The court below has taken into consideration the fact that the application under Section 311 Cr.P.C., 1973 was filed with a prayer for recalling Mr. Om Prakash Ajmera at the time when the matter was fixed for the final arguments and it is not the case of the petitioner that the evidence which it now to produce through Mr. Om Prakash Ajmera was not in its possession at the time of filing of the complaint or at the time of adducing prosecution evidence. The court has observed that the aid of Section 311 Cr.P.C., 1973 cannot be taken for the purpose of filling lacunae.

5. Learned counsel for the petitioner has submitted that the object of Section 311 Cr.P.C., 1973 is to the effect that the valid evidence be present before the Court for the purpose of just decision of the case. It is contended that even if summoning of a witness may be result in filling of lacunae, the court must order to allow either of the parties to produce evidence, which is relevant for just decision of the case.

6. In respect of the above contention, learned counsel for the petitioner has placed reliance on a decision of the Hon'ble Supreme Court rendered in Iddar & Ors. v. Aabida & Anr, reported in 2008 (1) RLW 493.

7. Having heard learned counsel for the petitioner and after going through the impugned order, it is clear that it is not the case of the petitioner that the evidence which now they want to produce through Mr. Om Prakash Ajmera was not available at the time of filing complaint or at the time of adducing evidence. It is not in dispute that the evidence of the parties were completed and the matter was fixed for final disposal. However, at this stage the petitioner has filed an application under Section 311 Cr.P.C., 1973

8. This Court is of the opinion that the trial court has rightly observed that aid of Section 311 Cr.P.C, 1973 cannot be taken for the purpose of filling of lacunae. The decision of the Hon'ble Supreme Court relied on by the learned counsel for the petitioner in Iddar & Ors. v. Aabida & Anr (supra) is of no help to the petitioner as the facts of that case are different from that of the present case.

9. Hence, the criminal misc. petition is dismissed.