MANGAMMA Vs. MUNIYAPPA

JUDGEMENT

(1.) 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 CNI 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.