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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25^TH DAY OF MARCH, 2021

BEFORE

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

CRIMINAL PETITION NO.2262 OF 2021

C/W.

CRIMINAL PETITION No.2259 OF 2021

BETWEEN:

SRI. ARUN KUMAR L

S/O LATE C.LINGAIAH

AGED ABOUT 54 YEARS

EXECUTIVE DIRECTOR

M/s SKILL TECH ENGINEERS &

CONTRACTORS PVT. LTD.,

No.2904, 2^ND FLOOR

NEW KANTHARAJ URS ROAD

SARASWATHIPURAM

MYSURU-570 004. & PETITIONER

COMMON

(BY SRI.SATYANARAYANA CHALKE.S., ADVOCATE)

AND:

SRI.BUNTY K.MEHTA

S/O KIRIT MEHTA

AGED ABOUT 31 YEARS

PROPRIETOR

F.S.ENTERPRISES

SY No.58, ANDRAHALLI MAIN RAOD

YESHWANTHPURA HOBLI

BENGALURU-560 091.

& RESPONDENT

COMMON

(BY SRI.M.R.BALAKRISHNA, ADVOCATE)

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THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION

482 OF CR.P.C. PRAYING TO SET ASIDE BY ORDER DATED

23.02.2021 IN C.C.NO.3522/2015 AND C.C.NO.1643/2015,

RESPECTIVELY PASSED BY THE 27^TH A.C.M.M., BENGALURU

PRODUCED AS ANNEXURE-K.

THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION

THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

These two petitions are filed under Section 482 of Cr.P.C,

praying this Court to set aside the common order dated

23.02.2021 passed in C.C.No.3522/2015 and C.C.No.1643/2015,

respectively by the 27^th Additional Chief Metropolitan Magistrate,

Bengaluru, wherein, the Trial Court has allowed the application

filed under Section 311 of Cr.P.C, by the complainant for

recalling of P.W.1 for further examination.

2.

The factual matrix of the case is that the respondent

herein has filed a private complaint under Section 200 of Cr.P.C.

invoking the offence under Section 138 of the Negotiable

Instruments Act, 1881 (8the NI Act9 for short). The Trial Court

after taking the cognizance, the petitioner herein also appeared

before the Court and contested the matter. The witnesses have

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been examined on behalf of the complainant and also

accused/petitioner herein. When the case was set down for final

arguments, an application was filed under Section 311 of Cr.P.C,

by the complainant for recalling of P.W.1 for further examination

in order to correct the discrepancy found in the material on

record. While filing an application, the complainant in paragraph

No.2 made an averment that P.W.1 was recalled and his further

examination was recorded by marking of Exs.P1 to P3

documents on 07.11.2020, but inadvertently certain crucial

questions which referring to previous chief examination of P.W.1

was not adduced, and the same is very much required for just

decision of the Court. If an application is allowed, it will enable

the complainant to rectify the defects crept in the previous chief

examination. Hence, the application has to be allowed.

3.

The said application is opposed by filing a detailed

objection statement contending that during the final arguments,

the complainant has filed an application for further chief

examination to rectify the defects found in the chief examination

affidavit dated 29.06.2015 and to mark the correct exhibits by

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withdrawing the same from another case in C.C.No.1643/2015.

Upon hearing the application, this Court was pleased to allow

both the applications and directed the complainant to withdraw

Exs.P1 to P3 from this case and to mark it in C.C.No.1643/2015.

Now, the accused has made this application only to fill up the

lacuna, which was found in the evidence of the complainant and

the same is not permissible under law. It is settled law that

under Section 311 of Cr.P.C. cannot be filed to fill up the lacuna

or to improvise the case of the complainant. Hence, the same

cannot be permitted.

4.

The trial Judge considering the application and also

the objections, passed a detailed order on 23.02.2021,

considering the grounds urged in the application and also the

objections statement and came to a conclusion that invoking of

Section 311 of Cr.P.C., the com