- 1 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 1656 OF 2025 BETWEEN: SRI. K R SHIVAKUMAR, S/O LATE RANGAPPA AGED ABOUT 44 YEARS, R/AT NO.101, PROP NO.115 SLN RESIDENCY RMV 2ND STAGE 6TH CROSS NAGARASHETTYHALLI, BALAJI LAYOUT RING ROAD, BANGALORE- 560094 …PETITIONER (BY SRI. HARISH KUMAR M.T., ADVOCATE) AND: SRI SRINIVAS S/O LATE VENKATESHAPPA AGED 47 YEARS R/AT NO.46, GANTAGANAHALLI SINGANAYAKANAHALLI YELHANKA BANGALORE- 560064 …RESPONDENT THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNNS) BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO A. SET ASIDE THE ORDER DATED 31.07.2023 PASSED BY THE VI ADDITIONAL SMALL CAUSES JUDGE AND ACMM, BANGALORE IN C.C NO. 20/2020, BY ALLOWING THE APPLICATION FILED BY THE RESPONDENT U/S 311 AND 91 OF CR.P.C.B. SET ASIDE THE ORDER DATED 31.07.2023 IN C.C NO. 20/2020, PASSED BY THE LEARNED VI ADDITIONAL SMALL CAUSES JUDGE AND ACMM, BANGALORE, AND ORDER DATED 30.12.2023 PASSED IN CRL. REV.PET. NO. 573/2023 PASSED BY HONBLE LXI CITY CIVIL AND SESSIONS JUDGE, (CCH-60), AT BENGALURU. Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER This petition by the accused in C.C.No.20/2020 is directed against the impugned order dated 31.07.2023 passed by the VI Additional Small Causes Judge and ACMM, Bengaluru, whereby the applications filed by the complainant/respondent under Sections 311 and 91 of Cr.P.C. for permission to recall PW.1 and for producing additional documents were allowed by the trial Court. 2. Heard the learned counsel for the petitioner and perused the material on record. 3. A perusal of the material on record will indicate that the aforesaid proceedings instituted by the respondent/complainant against the petitioner under Section 138 of Negotiable Instruments Act, 1881, after completion of evidence of PW.1, respondent filed two applications viz. under Sections 311 and 91 of Cr.P.C. for permission to recall PW.1 and for producing additional documents. The said applications having been opposed by the respondent, trial - 3 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 Court passed the impugned order allowing the applications by holding as under: ORDERS ON APPLICATION FILED U/SEC.311 and U/Sec.91 OF CR.P.C. Dated:25.03.2023 01. The complainant has filed two applications under Sec.311 and separate application U/Sec.91 of Cr.P.C. seeking permission to recall P.W.1 for the purpose of marking the additional documents in further examination-in- chief of Pw:1 and to produce additional documents. 02. It is contended in the application that, the accused had agreed to carry out the construction work for the complainant and in this regard, he paid Rs.1,75,00,000/- to the accused. The accused has not done any construction work in Site No.3 of Kodihalli Village. Therefore, accused issued cheques in question in favor of complainant. 2.1 It is contended that, at the time of recording of chief-examination of P.W.1, some of the documents were not available with him and therefore, the same were not produced at the initial stage of the case. Now, the case was listed for cross-examination of P.W.1. It is contended that, complainant got some relevant documents i.e., sale deeds, gift deed, Bank Statements, RTC Extract, Electricity license, Conversion order, Tax paid Receipts, Contract Agreement, Estimation of construction work in support of his case and they were secured recently from the concerned department. With these averments, he prays to allow the application. 03. The learned counsel for the accused has filed separate objections to the above applications, contending that, the applications are not maintainable. Sec.91 Cr.P.C. is related to issuance of summons to produce documents or other things. The accused has cross-examined the complainant in detail. 3.1 The present applications are filed only to fill up the lacuna in complainant’s case. The proposed documents are created and fabricated by the complainant. He has not assigned any satisfactory reasons in the applications for production of such documents. In some documents name of Smt. Saraswathi is mentioned, but she is not a witness to the case in hand. The complainant has produced the documents of the year 2017-18, but the alleged transaction - 4 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 took place in the year 2020. With these averments he prays to reject the application. 04. Heard the arguments of learned counsel for both parties. Counsel for the accused filed memo with decisions of Apex Court in Crl.Appeal. (SLP) Crl. 2400 of 2011 (S.C.), 2006 Crl. L.J. 2507, Cr. Appl. No.15 of 2019 (SLP) (S.C.) and AIR 1999 (S.C.) 2292. 05. This is the private complaint filed against the accused for the offence punishable U/Sec.138 of N.I. Act. On perusal of order sheet reveals that, on 18.06.2022 and 21.02.2023, counsel for accused has cross-examined P.W.1 in part. 06. The stage of the case was listed for further cross-examination of P.W.1 and at that stage the complainant has filed the present applications U/Sec.311 and U/S. 91 of Cr.P.C. seeking permission for re-list examination of P.W.1 for the purpose of marking additional documents. 6. 1 It is just and proper to refer Sec.311 Cr.P.C. and it reads as follows: Sec.311. Power to summon material witness, or examined 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 though not summoned as a witness, or recall or re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears it to be essential to the just decision of the case. In view of the above provision, the re- examination of P.W.1 is permissible U/Sec.311 of Cr.P.C. 07. I have perused the deposition of P.W.1 and cross- examination done by counsel for the accused. The witness was questioned about source of money to pay Rs.1,75,00,000/- to the accused for the construction of building in dispute. P.w.1 has given an explanation that, he had sold off the site and collected the money through sale proceeds. 08. To substantiate his contention, he produced sale agreement dated: 21.06.2017, 25.09.2017, Sale Deed dated:14.02.2019, 12.09.2018 and other sale deeds, photograph of the house property, Bank Statements and other documents. The objection of the accused is that, proposed documents are not relevant evidence to the case in hand. The question of relevancy of documents relied on - 5 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 by the complainant can be discussed at the time of appreciating evidence in judgment. 09. If the proposed documents are fabricated or genuine can be tested during cross-examination of P.W.1. Moreover, the cross-examination of witness is not yet completed. 10. It is significant to note that, on 21.02.2023, this court has directed the complainant to produce sale deeds, diary, statement of account, Katha extract, building construction license and other documents related to construction of building in question. So, the complainant has filed the instant application with list of documents seeking permission to mark the same as exhibits in evidence. This is not an old case of 5 years and therefore, the decision relied on by the accused reported in 2006 Crl.L.J. 2507 of Hon’ble Jarkand High Court and Hon’ble Supreme Court of India in a case between Rajram Prasad Yadav Vs. State of Bihar and Another dated:04.07.2013, Swanakumar Chatrjai Vs. Central Buero of Investigation are not applicable to the present facts and circumstances of the case. 11. So, no hardship would be caused to the accused by allowing the applications. The hardship caused to the accused by allowing applications can be compensated by payment of cost. Hence following: :: ORDER :: Applications filed by the complainant U/sec 311 of CR.P.C and Sec.91 Cr.P.C., for marking of additional documents in further evidence of P.W.1 are hereby allowed subject to payment of cost of Rs.500/- payable to accused as a condition precedent. Call on 24.08.2023. 4. A perusal of the impugned order will indicate that the trial Court has come to the correct and proper conclusion that additional evidence and further examination-in-chief of PW.1 was relevant, necessary and essential for the purposes of adjudication of issue in controversy between the parties and since the accused - petitioner - 6 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 would have an opportunity not only to cross-examine PW.1 with reference to the additional evidence but also entitled to lead defence evidence, no prejudice would be caused to the petitioner if applications were allowed. 5. Upon re-consideration, re-evaluation and re-appreciation of the entire material on record, I am of the considered opinion that the impugned order passed by the trial Court allowing the aforesaid applications filed by the respondent/complainant cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse occasioning failure of justice warranting interference by this Court in the present petition. 6. Accordingly, I do not find any merit in the petition and the same stands disposed of without interfering with the impugned order. It is further made clear that the petitioner would be entitled to cross examine PW.1 and all other witnesses to be examined on behalf of the respondent /complainant on all aspects of the matter including the additional documents. Further liberty is also reserved in favour of the petitioner to adduce the defence evidence and put forth all contentions in support of his defence which shall be considered by the trial Court in accordance with law. - 7 - NC: 2025:KHC:8488 CRL.P No. 1656 of 2025 7. Subject to the aforesaid directions, the petition stands disposed of. Sd/- (S.R.KRISHNA KUMAR) JUDGE SA List No.: 1 Sl No.: 13