U. Durga Prasad Rao, JIn this petition filed under Section 482 Cr.P.C., the petitioner seeks to quash the order dated 12.12.2014 in Crl. MP No. 457 of 2014 in Crl. A. No. 300 of 2014 passed by learned Metropolitan Sessions Judge, Hyderabad, Ranga Reddy District at L.B. Nagar whereby and whereunder learned Judge dismissed the petition filed by the petitioner/appellant under Section 391 of Cr.P.C., seeking permission to examine the Manager of HSBC Bank, Somajiguda Branch as additional evidence. The factual matrix of the case is thus:

(a) The petitioner/complainant filed CC No. 138 of 2012 under Section 138 of N.I. Act before the IX Special Magistrate Court, R.R. District at Hasthinapuram, L.B. Nagar against the respondent/accused claiming that the complainant arranged a hand-loan of Rs. 3,00,000/- to the accused to meet her family needs and she executed a pronote dated 5.2.2012 and after six months, upon his demand the accused gave him a cheque bearing No. 083092 dated 24.3.2012 drawn on Hong Kong and Shanghai Banking Corporation Limited (for short "H.S.B.C"), Rajbhavan Road, Somajiguda, Hyderabad but when the complainant presented the cheque, it was returned through a memo dated 30.3.2012 with an endorsement "account blocked". He issued statutory notice demanding payment of the amount but the accused did not reply and hence the criminal case.

(b) The matter was contested by the accused on the main plank of defence that she never borrowed any amount nor issued cheque to the complainant but the complainant assured to provide loan to the husband of the accused through one third party and in that context as a security he took the signed blank cheque and a signed blank pronote and subsequently disputes arose between them and even without providing loan, the complainant filed a false case by pressing the cheque into action.

(c) The trial Court after full-fledged trial dismissed the complaint on different grounds. One of the grounds as mentioned in the Para 21 of its judgment was to the effect that the trial Court accepted the defence contention that the cheque was dishonored on the ground of "account blocked" but not for the reason of insufficient funds and such blocking of account is the action of the bank and may be for various reasons. It appears, the trial Court was of the view that the complainant could not prove that the cheque was returned by the bank with the endorsement "account blocked" only for the reason of insufficiency of funds.

(d) Hence the appeal by the complainant. In the said appeal, he filed Crl. MP No. 457 of 2014 under Section 391 Cr.P.C., seeking permission to examine the Manager of HSBC, Somajiguda Branch as additional evidence to speak about the meaning of the endorsement "account blocked" and also to speak about the outstanding balance in the account of accused on the date of endorsement to buttress his contention that the cheque was returned for want of sufficient funds in her account. This petition was vehemently opposed by the respondent/accused on the main contention that it was a belated application filed 1 1/2 years after filing of the appeal and it was intended to fill up the lacuna in the complainants case since no reason was given for not examining the Bank Manager at the correct opportune time. The appellate Court agreed with the contention of respondent/accused and dismissed the petition holding that no cogent reason was submitted by the complainant as to why he did not examine the Manager of HSBC Bank who is an important witness during the trial. The Court further held that it was a belated application.

Hence the instant petition.

2. Heard.

3. The submission of learned Counsel for petitioner is that he is not introducing any new evidence to fill up lacuna in his case and on the other hand, by examining the Manager of the Drawee bank he only proposes to clarify the term "account blocked" mentioned in Ex. P2--cheque return memo. He thus prayed to allow the petition.

4. Per contra, vehemently opposing the petition, learned Counsel for respondent argued that the evidence which the petitioner now proposes to let-in was very much within his knowledge during the trial but no steps were taken by him to examine him at the relevant time and further even in the appeal also he did not file the petition till the matter came up for arguments and hence the petitioner cannot now let-in new evidence to fill up the lacuna which is impermissible under law. He relied upon several decisions on this aspect.

5. In the light of above rival arguments, the point for determination is:

"Whether there are merits in this petition to allow"

6. Point: On hearing both sides and on perusal of the record, this Court fully agrees with the contention of respondent. Even during trial, the petitioner/complainant was conscious of the fact that the evidence of the Branch Manager or some other employee of HSBC Bank is essential to explain the term "account blocked" as mentioned in Ex. P2 and also to speak about the balance of amount in the account of the accused. It appears, he cited the Branch Manager as a witness also. However, for the reasons best known to him, he did not examine the said witness at the right opportune time. It is only when the accused took a defence plea that "account blocked" is an act of bank and such blocking of the account may be for various reasons and which defence plea was seemingly approved by trial Court in its judgment, the petitioner/complainant has come up with the petition under Section 391 Cr.P.C., which is nothing but an effort to fill up the lacuna. In the cited decision reported in Rambhau and Another Vs. State of Maharashtra, AIR 2001 SC 2120 : (2001) CriLJ 2343 : (2001) 2 Crimes 231 : (2001) 5 JT 121 : (2001) 3 SCALE 539 : (2001) 4 SCC 759 : (2001) 3 SCR 210 : (2001) 2 UJ 1076 : (2001) AIRSCW 1842 : (2001) 3 Supreme 544 , the apex Court has issued a note of caution for exercising the power under Section 391 Cr.P.C., as follows:

"Incidentally, Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice."

7. In the result, I find no merits in this petition and accordingly, the same is dismissed. As a sequel, miscellaneous petitions pending, if any, shall stand closed.