Dismissed

Vittal S/O Sangappa Galave v. Girimalla S/O Sidalingappa Godse

Karnataka HC14 Dec 2023CRL.P/102688/2023

Case brief

AI extract

What is this about?

The High Court dismissed a criminal petition challenging orders rejecting an application to recall a witness and permitting an additional affidavit. The Court held that clarifying date discrepancies at the stage of arguments amounted to filling a lacuna in evidence, violating Section 311 of Cr.P.C.

What did the court decide?

Petitioner’s application to recall PW-1 and file additional affidavit rejected; orders dated 15.03.2023 and 01.09.2023 upheld.

Vittal S/O Sangappa Galave Vs Girimalla S/O Sidalingappa… — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC-D:14665 CRL.P No. 102688 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF DECEMBER 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO.102688 OF 2023

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BETWEEN:

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VITTAL S/O SANGAPPA GALAVE, AGE. 61 YEARS, OCC. EX-MEMBER OF GRAM PANCHAYAT, NOW AGRICULTURE, R/O. TODALABAGI, TQ. JAMKHANDI, DIST. BAGALKOT-587301.

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… PETITIONER

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(BY SRI. GIRISH A. YADAWAD, ADVOCATE)

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AND:

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GIRIMALLA S/O SIDALINGAPPA GODSE, AGE. 46 YEARS, OCC. AGRICULTURE & CONTRACTOR, R/O. TODALABAGI, TQ. JAMKHANDI, DIST. BAGALKOT-587301.

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… RESPONDENT

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPI Date: 2023.12.16 11:13:22 +0530

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(BY SRI NEELENDRA D. GUNDE, ADVOCATE)

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THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.PC., SEEKING TO QUASH THE IMPUGNED ORDER DATED 15.03.2023 ON APPLICATION U/SEC.311 OF CR.P.C. AND ALSO THE ORDER DATED 01.09.2023 PASSED BY THE PRL.CIVIL JUDGE AND JMFC, JAMKHANDI IN CC NO.852/2017, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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2 - NC: 2023:KHC-D:14665 CRL.P No. 102688 of 2023

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ORDER

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This petition is filed praying to quash the order dated 15.03.2023 passed on the application filed under Section 311 of Cr.P.C and also the order dated 01.09.2023 passed in C.C.No.852/2017, pending on the file of the Principal Civil Judge and JMFC, Jamkhandi.

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Heard learned counsel for the petitioner and learned counsel for the respondent.

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The petitioner has initiated the proceedings against the respondent for the offence punishable under Section 138 of the Negotiable Instrument Act,1881 (hereinafter referred to as ‘N.I. Act’, for brevity) pending in C.C.No.852/2017. After competition of evidence both sides, the petitioner has filed an application under Section 311 of Cr.P.C seeking recall of PW-1 for further examination to clarify the date mentioned in the legal notice and examination-in-chief. The respondent has filed objections to the said application. After hearing both parties, the learned Magistrate has rejected the said

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3 - NC: 2023:KHC-D:14665 CRL.P No. 102688 of 2023

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application by order dated 15.03.2023. Thereafter, the petitioner has filed a memo along with additional affidavit by way of examination-in-chief seeking permission to file it. The counsel for the respondent has filed objections to the said memo. After hearing both parties, the learned Magistrate has rejected the said memo by order dated 01.09.2023. The petitioner has challenged both orders dated 15.03.2023 and 01.09.2023 in this petition.

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Learned counsel for the petitioner would

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contend that the correct date of lending money to the respondent is mentioned in the legal notice but, due to typographical error the same is not correctly mentioned in

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the affidavit filed in lieu of examination-in-chief of PW.1. To clarify the said typographical mistake, he filed an application seeking recall of PW.1 for further chiefexamination. If the said typographical error is not clarified, the respondent-accused will take benefit of the same. He contends that recall of PW.1 to clarify the said

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4 - NC: 2023:KHC-D:14665 CRL.P No. 102688 of 2023

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typographical error does not amount to filling up the lacuna. With this, he prayed to allow the petition.

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Per-contra, learned counsel for respondent would contend that when in the argument of respondentaccused it was pointed out the date mentioned in the legal notice and in the examination-in-chief affidavit regarding lending of the money, at that point of time to overcome the same contention of respondent-accused, the petitioner-complainant has filed an application and if it is allowed, it amounts to filing up the lacuna in the evidence. The Trial Court considering the said aspect has rightly rejected his application. He contends that when his application is rejected he has no right to file the memo seeking permission to file the additional affidavit by way of examination-in-chief. Considering the said aspect, the Trial Court has rightly rejected his memo. With this, he prays to dismiss the petition.

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Having heard learned counsel for the parties, the Court has perused the records.

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5 - NC: 2023:KHC-D:14665 CRL.P No. 102688 of 2023

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The petitioner-complainant in his complaint has

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not stated the date of lending loan. The petitioner in his legal notice and in his affidavit filed in lieu of examination in chief has stated the month in which he has lent loan to the respondent-accused. In reply notice, it is stated that in first week of December-2016 he lent loan and in his examination-in-chief it is stated that he lent loan during January-2017. Considering the said aspect there is a discrepancy in the date of lending loan by the petitioner to the respondent. After conclusion of the trial, when the arguments were addressed, the respondent-accused has taken the said contention. To meet the said contention, petitioner-complainant filed application under Section 311 of Cr.P.C seeking recall of PW.1 for further examination-inchief to clarify the said aspect. The reply notice and the affidavit filed in lieu of examination-in-chief of PW.1 are already on record. If PW.1 is recalled for further examination-in-chief when the matter is posted for addressing arguments, it amounts to filing up the lacuna in the case. The Trial Court placing reliance on the

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decisions of Hon’ble Apex Court in the case of State by Dy.SP Vs Tr.N.Seenivasagan¹ has held that in order to exercise powers conferred under Section 311 of Cr.P.C, there must be a case made out that in order to meet ends of justice and for strong and valid reasons must be putforth. Considering the said aspect, the Trial Court has rightly held that if PW.1 is recalled to clarify the said aspect, amounts to filing up of lacuna and rightly rejected the application seeking recall of PW.1.

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When the Trial Court has rejected the application to recall PW.1 for further examination, the complainant has no right to file the additional affidavit by way of examination-in-chief along with memo. PW.1 has already led his evidence. There was no occasion for him to file the memo along with additional affidavit by way of examination-in-chief. Considering the said aspect, Trial Court has rightly rejected his memo by order dated 01.09.2023. There are no grounds made out to quash the impugned orders dated 15.03.2023 and 01.09.2023.

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1 2021 SCC OnLine SC 212

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7 - NC: 2023:KHC-D:14665 CRL.P No. 102688 of 2023

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For the reasons stated supra, the Criminal Petition is

dismissed.

Sd/-

JUDGE

DSP,AM CT:BCK List No.: 1 Sl No.: 34

Vittal S/O Sangappa Galave v. Girimalla S/O Sidalingappa Godse

Case brief

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Vittal S/O Sangappa Galave v. Girimalla S/O Sidalingappa Godse

Case brief

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