- (1.) HEARD Sri Sandeep Tandon, learned counsel for the applicant and Sri Sachin Chopra for respondent no. 2.
(2.) BY means of this fresh petition, the petitioner has sought quashing of the impugned order dated 13-2- 2007 (Annexure No. 13 to the petition) passed by learned Sessions Judge, Dehradun in Criminal Revision No. 15 of 2007, whereby the order dated 7-12-2006 (Annexure No. 12 to the petition) passed by Special Judicial Magistrate 1st, Dehradun, in Complaint Case No. 1615 of 2004, Sardar Iqbal Singh Vs. Anil Sharma, was affirmed. Brief facts of the case are that the complainant (present petitioner) filed Criminal Complaint No. 1615 of 2004 against the respondent no. 2 Anil Sharma, alleging that the accused has committed offence punishable under Section 138 of Negotiable Instrument Act, 1881. It appears that the accused (Anil Sharma) summoned in said case and the trial progressed. Annexure 4, Annexure 5 and Annexure 6 shows that on behalf of the complainant P. W. I, Sardar Iqbal Singh, P. W. 2 Smt. Seema Sachdeva and P. W. 3 Arun Kumar were got examined as witnesses. After com plainant closed the evidence, the same appears to have been put to the ac cused under Section 313 of Cr. P. C. Thereafter on behalf of the defence D. W. I Anil Kumar Sharma (accused) got himself examined and also produced D. W. 2 Dr. V. K. Mehta, D. W. 3 Rajesh Kumar and D. W. 4 Ajay Mohan Paliwal, handwriting and finger prints expert, as witnesses. After the close of the defence evidence, the complainant moved an ap plication, dated 5-12- 2006, under Sec tion 311 of Cr. P. C. for permitting him to produce a finger print and handwriting expert of his choice. The said applica tion was rejected by the trial court vide its order dated 7-12-2006. Aggrieved by said order complainant preferred the Criminal Revision No. 15 of 2007 before the learned Sessions Judge. The same was also dismissed by said Court vide order dated 13-2-2007. Hence, this pe tition. On behalf of the respondent no. 2, an objection is raised as to the maintainability of this petition under Sec tion 482 of Cr. P. C. Attention of this Court is drawn on behalf of respondent no. 2, to the principle of law laid down by the Apex Court in Rajan Kumar Manchanda Vs. State of Karnataka JT 1987 (4) SC 637 and also to the one laid down in Krishnan Vs. Krishna Veni (1997) 4 SCC 241. Hon'ble the Su preme Court in said cases have held that the powers under Section 482 of Cr. P. C. cannot be exercised to circumvent the bar contained in Sub-Section (3) of Sec tion 397 of the Code. From the papers on record, it is evident that after the complainant's application was dismissed by the trial court, he preferred the revi sion before the Sessions Judge and that too has been dismissed. Undoubtedly second revision is not maintainable by the same party. As such, moving an application under Section 482 of Cr. P. C. against Revisional Court's order, amounts to review the orders passed by the courts below i. e. indirectly exercis ing the powers as second Revisional Court at the instance of the same party. This Court is in agreement with the learned counsel for the respondent no. 2 that the law does not permit this Court to entertain a petition under Section 482 of Cr. RC. to circumvent the provi sions of Sub-Section (3) of Section 397 of Cr. P. C. , except in cases of grave mis carriage of justice.
(3.) ASSUMING for a moment that this Court can entertain a petition under Sec tion 482 of Cr. P. C. in the matter, still, there is yet another hurdle on the way of the petitioner. The petitioner wanted the trial court to exercise its powers under Section 311 of Cr. P. C. to summon a fingerprint and handwriting expert. It is settled principle of law that the pow ers under Section 311 of Cr. P. C. cannot be exercised only to fill the lacuna in the prosecution evidence. A copy of the statement of P. W. 1 Sardar Iqbal Singh shows that in the cross-examination, there was a suggestion from the defence that in the disputed cheque (Ext. A-2), complainant has got interpolation done by mentioning '2004' in place of '2001'. As such, the complainant was aware of the case of the defence and he opted not to adduce evidence of any finger print and hand writing expert from the side of the complainant. It is only after the defence evidence is closed and the case was listed for arguments when the peti tioner woke up and moved the applica tion. In the opinion of this Court, in the circumstances, the attempt on the part of the complainant was only to fill the lacuna in the prosecution evidence. Learned counsel for the petitioner drew attention of this Court to the case of V. T. of Dadra and Nagar Haveli Vs. Fateh Singh Mohan Singh Chauhan (2006) 7 SCC page 529. The facts of the said case were different and in that case the ap plication of the prosecution was allowed to examine the witness, a collector, with regard to whom the accused had taken the plea that he had a meeting (with Col lector) at the time of the incident and the accused got examined two witnesses to support their plea of alibi. The Col lector was the most important person, who could have stated whether he met those persons at that relevant point of time or not. In such circumstances, the Apex Court held that it was not a case of filling of lacuna from the side of the prosecution. However, the facts of this case are different. As such, the referred case law is of no help to the complain ant. For the reasons, as discussed above, the petition under Section 482 of Cr. P. C. is dismissed. .;