Dismissed

Kailash Gokulshet Kharote v. Suresh Vishwanath Kumawat

Bombay HC25 Apr 2012WP/203/2012

Case brief

AI extract

What is this about?

Single judge disposed of a writ petition challenging the rejection of an application under Section 311 Cr.P.C. to record further evidence. The court held that the application was an attempt to fill gaps in the case after ample opportunity existed and dismissed the petition.

What did the court decide?

Writ petition dismissed; rule discharged as application under Section 311 Cr.P.C. was rejected.

Kailash Gokulshet Kharote Vs Suresh Vishwanath… — Civil Procedure and Limitation | Bombay HC (2012)

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Cri WP 203/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 BENCH AT AURANGABAD

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CRI. WRIT PETITION NO. 203 OF 2012

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Kailash s/o Gokulshet Kharote, Age 46 years,
Occupation Business, Resident of Gangapur Road,
Vaijapur, District Aurangabad

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Petitioner

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V E R S U S

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Suresh s/o Vishwanath Kumawat, Aged 43 years,
Occupation Service, Resident of Dag Bangala Road,
Opp. Rajesh Medical, Vaijapur, District Aurangabad

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Respondent

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Shri M.G. Deokate, Advocate for the petitioner
Shri R.N. Dhorde, Advocate, holding for
Shri V.R. Dhorde, Advocate for the respondent

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CORAM : A.V.NIRGUDE, J.
DATE : 25th April, 2012

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ORAL JUDGMENT :-

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1.Heard.

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2.Rule. Rule made returnable forthwith. By
consent of the parties, this petition is taken up for
final hearing and heard finally.

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3.This writ petition challenges the concurrent
orders passed by the lower Courts rejecting application
under Section 311 of Criminal Procedure Code.

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4.The petitioner is complainant in S.C.C. NO. 449
of 2010, which is pending before the learned Judicial

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2 Cri WP 203/12

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Magistrate, First Class, Vaijapur. The petitioner/
complainant has filed this private complaint under Sec.
138 of Negotiable Instruments Act against the respondent.
The petitioner recorded his deposition in October, 2011.
He was extensively cross-examined by the respondent’s
Advocate. Thereafter, the petitioner made application to
the Court seeking permission to file certain documents in
support of his case. The respondent/accused did not
oppose this application, and documents so produced by the
petitioner were taken on record and were exhibited. This
was done on 13thDecember, 2011. Thereafter, the
petitioner/complainant closed his case by filing pursis.
TheCourtthenrecordedstatementofthe
accused/respondent under Sec. 313 of Cr.P.C. The
accused/respondent did not lead any evidence in defence,
but thereafter, suddenly on 23rd December, 2011, the
present application under Section 311 of Cr.P.C. came to
be filed.

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5.The petitioner/complainant now says that he has
to record further evidence because the respondent/accused
did not lead evidence in defence. The Courts below did
not accept this as good reason for allowing his
application. Section 311 of Cr.P.C. reads as under :-

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“311. Power to summon material witness, or examine person present. - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance,

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3 Cri WP 203/12

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though not summoned as a witness, or recall and re-examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case .

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6.On perusal of this provision, it is clear that,
party who seeks an order under this Section from the
Court, must convince the Court that the additional
evidence is necessary for just decision on the case.
The petitioner/complainant had ample opportunity to lead
his evidence. He apparently used this opportunity to
lead his entire evidence, and therefore, there is no
need for him to lead further evidence. Even on facts
and the line of defence which the respondent took in the
cross-examination, the petitioner/complainant was made

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aware as to what additional evidence he could have led.
But, apparently, no additional evidence was recorded
save and except few documents which were produced on
record on 13th December, 2011. It is settled law that the
provision of Section 311 of Cr.P.C. cannot be used for
filling up of gaps in the case. The present application

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is apparently moved for filling of the gaps in the case
of the petitioner/complainant. In any case, there is no
need to record further evidence for just decision of
the case. The writ petition fails. The writ petition is
dismissed. Rule is discharged.

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SRM/25/4/12

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4 Cri WP 203/12

Kailash Gokulshet Kharote v. Suresh Vishwanath Kumawat

Case brief

What is this about?

What did the court decide?

Kailash Gokulshet Kharote v. Suresh Vishwanath Kumawat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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