# Gyanendra Kumar Rawat v. State of U.P. And Anr

- **Citation:** (2013) 2 ILRA 673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-30
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanendra-kumar-rawat-v-state-of-u-p-and-anr-42627
- **Pages:** 3

## Headnote

Code Of Criminal Procedure-Section 482-
After closing prosecution evidence and
statements under Section 313-argument,
heard
on
14.06.12-thereafter
on
26.07.12
application
on
behalf
of
prosecution to summon such witnessneither
statement
recorded
under
section 161 nor shown in list of witnessheld-prosecution can not be allowed to
fill up the lacuna after examination of all
prosecution witness.

Held: Para-11
Certainly the prosecution cannot be
permitted to fill up the lacunas after it
has examined all its witnesses. No
reason was shown in the application as
to why the said witness was not
examined by the Investigating Officer
under Section 161 Cr.P.C. and why such
application was not moved at the initial
stage.
The
prosecution
cannot
be
permitted to re-open its case and there
was
no justification
to
allow such
application moved at the belated stage.
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Case Law discussed:
CRLMC No. 2680 of 2010; Crl. Misc. Appl.
(C482) No. 892 Of 2011.

## Text

2 All] Gyanendra Kumar Rawat Vs. State of U.P. And Anr.
673
draws presumption of dishonesty against
drawer of the cheque if he without sufficient
funds to his credit in his bank account to
honor the cheque issues the same and,
therefore, amounts to an offence under
Section 138 of the Act. For the persons stated
hereinabove, we are unable to share the
views expressed by this Court in the above
two cases and we respectfully differ with the
same regarding interpretation of Section 138
of the Act of the limited extent as indicated
above.

21. It is needless to emphasize that
the Court taking cognizance of the
complaint under Section 138 of the Act is
required to be satisfied as to whether a
prima facie case is made out under the
said provision. The drawer of the cheque
undoubtedly gets an opportunity under
Section 139 of the Act to rebut the
presumption at the trial. It is for this
reason we are of the considered opinion
that the complaints of the appellant could
not have been dismissed by the High
Court at the threshold."

9. The judgment relied upon by the
learned counsel for the applicant in the
case of Raj Kumar Khurana (Supra) is
totally distinguishable from the present
case and cannot be made applicable to the
instant case. Moreover, the other two case
laws which have been cited by the learned
counsel for the applicant are also
completely distinguishable from the facts
of the present case and they do not deal
with the controversy involved in the
present case, hence the same are also not
applicable in the present case.

10. Thus, in view of the law laid
down by the Apex Court in the case of
M/s Modi Cements Limited (Supra), the
arguments raised by the learned counsel
for the applicant is not sustainable in the
eyes of law.

11. The application lacks merit and
is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Misc. Writ Appl.No. 16659 Of 2013

Gyanendra Kumar Rawat
 ...Petitioner
Versus
State of U.P. And Anr.
 ...Respondents

Counsel for the Petitioner:
Sri R.D. Singh, Sri Mayank Singh

Counsel for the Respondents:
A.G.A.

Code Of Criminal Procedure-Section 482-
After closing prosecution evidence and
statements under Section 313-argument,
heard
on
14.06.12-thereafter
on
26.07.12
application
on
behalf
of
prosecution to summon such witnessneither
statement
recorded
under
section 161 nor shown in list of witnessheld-prosecution can not be allowed to
fill up the lacuna after examination of all
prosecution witness.

Held: Para-11
Certainly the prosecution cannot be
permitted to fill up the lacunas after it
has examined all its witnesses. No
reason was shown in the application as
to why the said witness was not
examined by the Investigating Officer
under Section 161 Cr.P.C. and why such
application was not moved at the initial
stage.
The
prosecution
cannot
be
permitted to re-open its case and there
was
no justification
to
allow such
application moved at the belated stage.
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Case Law discussed:
CRLMC No. 2680 of 2010; Crl. Misc. Appl.
(C482) No. 892 Of 2011.

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Supplementary affidavit filed by
learned counsel for the applicant is taken
on record.

2. Heard learned counsel for the
applicant, learned A.G.A. and perused the
record.

3. This criminal misc. application
u/s 482 Cr.P.C. has been filed with the
prayer to quash the order dated 28.7.2012
passed by 7th A.C.J.M., Agra in Criminal
Case
No.369
of
2010
"State
Vs.
Gyanendra
Kumar
Rawat",
under
Sections 420, 465, 467, 468, 471 I.P.C.,
P.S. Lohamandi, District Agra.

4. Learned counsel for the applicant
has submitted that in the present case the
prosecution has adduced all his evidences
and after that the arguments were also
heard
but
after
conclusion
of
the
arguments of the prosecution, another
witness Shatrughan Singh the then City
Magistrate, Agra has been summoned
under Section 311 Cr.P.C. It has been
submitted that the prosecution cannot be
permitted to fill up the lacuna of
prosecution case and the court below has
not considered this matter.

5. Learned A.G.A. has defended the
impugned order.

6. By the supplementary affidavit,
the certified copy of the order-sheet has
been filed which reveals that after the
prosecution evidence and statement under
Section 313 Cr.P.C., the case was listed
for arguments on 8.6.2012 and the
arguments were heard on 14.6.2012. On
26.7.2012 the prosecution had moved an
application to summon the said witness
Satrughan Singh and learned trial court
after hearing both the parties, has allowed
the application under Section 311 Cr.P.C.
and has summoned Satrughan Singh the
then City Magistrate, Agra on the ground
that in view of page nos.86 and 87 of the
file, the City Magistrate has sent the
report to District Magistrate, Agra in
which it was mentioned that Digambar
Singh and Jitendra Singh had cooperated
with Gyanendra Kumar Rawat because
the said envelop was not received by
C.R.A.

7. Learned counsel for the applicant
has relied upon the judgment of Orissa
High Court dated 30.8.2011 passed in
CRLMC No.2680 of 2010 "Akshya
Kumar Patra Vs. State of Orissa", in
which the Orissa High Court has held as
under:-

"It is equally important to note
herein that in the present case evidence
on the side of the prosecution had been
concluded, defence had also concluded
their evidence, arguments from both the
sides had also been concluded. It is at
such a stage that the prosecution sought
time to advance further arguments and it
is
only
after
three
adjournments
thereafter, that the present petition under
Section 311 Cr.P.C. came to be filed.
Clearly
neither
at
the
stage
of
examination of the Investigating Officer
nor during the examination of any of the
prosecution witnesses did the prosecution
bring
about
any
relevant
evidence
justifying the examination of Palu @
Ajaya Kumar Barik as a witness. As held
in the case of Karam Chand Mukhi and
others (supra), if it was the case of the
2 All] Gyanendra Kumar Rawat Vs. State of U.P. And Anr.
675
prosecution that there is negligence or
mischief by the Investigating Officer in
omitting the name of Palu @ Ajaya
Kumar Barik from the list of chargesheeted witness, then such a question
should have been specifically put to the
Investigating Officer by the prosecution in
the shape of leading questions, if
permitted by the trial court, so as to
provide circumstances for consideration
of the trial court in the event any such
additional evidence is sought to be
examined. Admittedly, in the present case
nothing has been done by the prosecution
and, therefore, when there is no positive
circumstances available to indicate that
Palu @ Ajaya Kumar Barik is a witness
to the occurrence (pre or post), this Court
finds
that
the
application
of
the
prosecution under Section 311 Cr.P.C.
ought to have been rejected by the court
below."

8. Reliance has further been placed on
the judgment of Uttarakhand High Court
dated 27.9.2011 passed in Criminal Misc.
Application (C482) No.892 of 2011 "Km.
Shailja Rawat Vs. State of Uttarakhand",
in which the Uttarakhand High Court has
held as under:-

"This Court agree with the learned
trial court that the object of Section 311
Code of Criminal Procedure, is not to fill
the lacunae in the evidence of any party."

9. Learned counsel for the applicant
has
further
relied
upon
Raghuveer
Prashad Sharma Vs. State of Madhya
Pradesh, 2009(4) Crimes 315, in which it
has been held that because the statement
of Dhanno was not recorded under
Section 161 Cr.P.C., therefore, there was
no justification on the part of learned
court below in allowing the application
filed by respondent for permitting to
examine Dhanno as prosecution witness.

10. In the present case the
prosecution evidence was concluded on
8.6.2012 and the statement under Section
313 Cr.P.C. was also recorded on
8.6.2012 thereafter the arguments were
heard on 14.6.2012 because the accused
persons had not adduced any evidence in
defence. After that various other dates
were fixed for remaining arguments and
on 26.7.2012 this application under
Section 311 Cr.P.C. was moved by the
prosecution. Admittedly the name of
Satrughan Singh did not find place in the
list of witnesses and he was not examined
under Section 161 Cr.P.C. It was alleged
that he has sent the report to the District
Magistrate
regarding
collusion
of
Digambar Singh and Jitendra Singh with
Gyanendra Kumar Rawat.

11. Certainly the prosecution cannot
be permitted to fill up the lacunas after it
has examined all its witnesses. No reason
was shown in the application as to why
the said witness was not examined by the
Investigating Officer under Section 161
Cr.P.C. and why such application was not
moved
at
the
initial
stage.
The
prosecution cannot be permitted to reopen
its
case
and
there
was
no
justification to allow such application
moved at the belated stage.

12. In these circumstances, the order
dated 28.7.2012 cannot be sustained. The
application is allowed and the order dated
28.7.2012 is quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2013

BEFORE