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2025 DIGILAW 1197 (TS)

Sukesh Gupta v. Rare Asset Reconstruction Limited

2025-10-10

K.SUJANA

body2025
ORDER : 1. This Criminal Petition is filed seeking the Court to quash the order dated 03.03.2025 passed in Crl.M.P.No.5173 of 2024 in Crl.A.No.1375 of 2017 by the learned Sessions Judge, Hyderabad. 2. The brief facts of the case are that the petitioner filed the above Criminal Miscellaneous Petition under Sections 391 (1) read with 315 Cr.P.C. seeking permission to adduce defence evidence by examining himself as a defence witness stating that the complaint was originally filed by Punjab National Bank as holder in due course of two cheques issued by him in favour of M/s. MBS Jewellers Pvt. Ltd., which were dishonoured, and that during the pendency of the appeal, M/s Rare Asset Reconstruction Limited was substituted as the respondent. The petitioner claimed that it was essential to examine himself to rebut the legal presumptions under Sections 118 and 139 of the Negotiable Instruments Act and to establish the lack of consideration. On the other hand, the respondent opposed the petition contending that the petitioner had earlier filed Crl.M.P.Nos.683 and 684 of 2024 under Sections 311 and 391(1) Cr.P.C. seeking to recall PW1 and adduce further evidence on the same issue, which were dismissed on merits and that the present petition was a repetition of the same allegations and reliefs concerning the same cheques and parties, and was filed only to reopen issues that had already been adjudicated. After hearing both side, vide order dated 03.03.2025, the trial Court dismissed the petition holding that the petitioner failed to show any valid reason for seeking to adduce evidence at this stage, especially when he had already been given an opportunity during the trial and observed that the petitioner was merely reiterating the same facts and issues that had been previously decided, amounting to an attempt to re-agitate the matter under a different guise. Aggrieved thereby, the petitioner filed the present criminal petition. 3. Heard Sri K.S. Rahul, learned counsel appearing on behalf of the petitioner as well as Sri K. Raghavendra Rao, learned counsel appearing on behalf of respondent No.1 and Sri Rudresh Deshpande, learned Assistant Public Prosecutor appearing on behalf of respondent No.2-State. 4. Learned counsel for the petitioner submitted that the complainant, Punjab National Bank, could not be treated as the “holder in due course” of Exs.P3 and P4 cheques as no consideration was ever paid to the payee, M/s MBS Jewellers Pvt. Ltd., or to the petitioner. 4. Learned counsel for the petitioner submitted that the complainant, Punjab National Bank, could not be treated as the “holder in due course” of Exs.P3 and P4 cheques as no consideration was ever paid to the payee, M/s MBS Jewellers Pvt. Ltd., or to the petitioner. He further submitted that under Section 9 of the Negotiable Instruments Act, a person becomes a holder in due course only upon receipt of consideration, and the cheque return memos (Exs.P5 and P6) addressed to the payee clearly established that the cheques were presented only for collection on behalf of the payee. He contended that the petitioner sought to examine himself to establish this crucial fact of lack of consideration, which was essential to rebut the statutory presumptions under Sections 118 and 139 of the Act and to ensure a just decision in the matter, but the appellate Court erroneously dismissed the petition without proper appreciation of law and facts, thereby causing grave prejudice to the petitioner. Therefore, he prayed the Court to quash the order dated 03.03.2025 passed in Crl.M.P.No.5173 of 2024 in Crl.A.No.1375 of 2017 by the learned Sessions Judge, Hyderabad by allowing this criminal petition. 5. In support of his submissions, he relied upon the judgment of the Hon’ble Supreme Court in Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others , (2004) 4 SCC 158 wherein in paragraph Nos.58 and 59, it is held as follows: “58. Though it was emphasised with great vehemence by Mr Sushil Kumar and Mr K.T.S. Tulsi that the High Court dealt with the application under Section 391 of the Code in detail and not perfunctorily as contended by learned counsel for the appellants, we find that nowhere the High Court has effectively dealt with the application under Section 391 as a part of the exercise to deal with and dispose of the appeal. In fact the High Court dealt with it practically in one paragraph i.e. para 36 of the judgment accepting the stand of learned counsel for the accused that the consideration of the appeal has to be limited to the records set up under Section 385(2) of the Code for disposal of the appeal under Section 386. This perception of the powers of the appellate court and misgivings as to the manner of disposal of an appeal per se vitiates the decision rendered by the High Court. This perception of the powers of the appellate court and misgivings as to the manner of disposal of an appeal per se vitiates the decision rendered by the High Court. Section 386 of the Code deals with the manner and disposal of the appeal in the normal or ordinary course. Section 391 is in the nature of exception to Section 386. As was observed in Rambhau Case [ (2001) 4 SCC 759 : 2001 SCC (Cri) 812] if the stand of learned counsel for the accused as was accepted by the High Court is maintained, it would mean that Section 391 of the Code would be a dead letter in the statute book. The necessity for additional evidence arises when the court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in. In all cases it cannot be laid down as a rule of universal application that the court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. If the evidence already on record is shown or found to be tainted, tailored to suit or help a particular party or side and the real truth has not and could not have been spoken or brought forth during trial, it would constitute merely an exercise in futility, if it considered first whether the evidence already on record is sufficient to dispose of the appeals. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the object of any trial. The exercise has to be taken up together. It is not that the Court has to be satisfied that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial court and similarly the High Court on consideration of the additional evidence can upset the trial court's verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused. 59. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused. 59. Merely because the High Court permits additional evidence to be adduced, it does not necessarily lead to the conclusion that the judgment of the trial court was wrong. That decision has to be arrived at after assessing the evidence that was before the trial court and the additional evidence permitted to be adduced. The High Court has observed that question of accepting application for additional evidence will be dealt with separately, and in fact dealt with it in a cryptic manner, practically in one paragraph, and did not think it necessary to accept the additional evidence. But at the same time made threadbare analysis of the affidavits as if it had accepted it as additional evidence and was testing its acceptability. Even the conclusions arrived at with reference to those affidavits do not appear to be correct and seem to suffer from apparent judicial obstinacy and avowed determination to reject it. For example, to brand a person as not truthful because a different statement was given before the trial court unmindful of the earliest statement given during investigation and the reasons urged for turning hostile before court negates the legislative intent and purpose of incorporating Section 391 in the Code. The question of admission of evidence initially or as additional evidence under Section 391 is distinct from the efficacy, reliability and its acceptability for consideration of claims in the appeal on merits. It is only after admission, the court should consider in each case whether on account of earlier contradiction before court and the testimony allowed to be given as additional evidence, which of them or any one part or parts of the depositions are creditworthy and acceptable, after a comparative analysis and consideration of the probabilities and probative value of the materials for adjudging the truth. To reject it merely because of contradiction and that too in a sensitised case like the one before the Court with a horror and terror oriented history of its own would amount to conspicuous omission and deliberate dereliction of discharging functions judiciously and with a justice-oriented mission. To reject it merely because of contradiction and that too in a sensitised case like the one before the Court with a horror and terror oriented history of its own would amount to conspicuous omission and deliberate dereliction of discharging functions judiciously and with a justice-oriented mission. In a given case when the Court is satisfied that for reasons on record the witness had not stated truthfully before the trial court and was willing to speak the truth before it, the power under Section 391 of the Code is to be exercised. It is to be noted at this stage that it is not the prosecution which alone can file an application under Section 391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Section 391 of the Code has been enacted. Certain observations of the High Court like, that if the accused persons were really guilty they would not have waited for long to commit offences or that they would have killed the victims in the night taking advantage of the darkness and/or that the accused persons had saved some persons belonging to the other community, were not only immaterial for the purpose of adjudication of application for additional evidence but such surmises could have been carefully avoided at least in order to observe and maintain the judicial calm and detachment required of the learned Judges in the High Court. The conclusions of the High Court that 65 to 70 persons belonging to the attacked community were saved by the accused or others appears to be based on the evidence of the relatives of the accused who were surprisingly examined by the prosecution. We shall deal with the propriety of examining such persons, infra. These aspects could have been, if at all permissible to be done, considered after accepting the prayer for additional evidence. It is not known as to what extent these irrelevant materials have influenced the ultimate judgment of the High Court, in coming with such a strong and special plea in favour of a prosecuting agency which has miserably failed to demonstrate any credibility by its course of action. The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind. The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind. Arbitrariness is found writ large on the approach as well as the conclusions arrived at in the judgment under challenge, in unreasonably keeping out relevant evidence from being brought on record.” 6. On the other hand, learned counsel for respondent No.1 filed counter affidavit denying the averments made by the learned counsel for the petitioner stating that the petitioner had filed the petition seeking permission to adduce defence evidence by examining himself on the same issue of whether the complainant was a “holder in due course” of the cheques, which had already been decided in Crl.M.P.Nos.683 and 684 of 2024 and that the petitioner failed to explain why he did not adduce his evidence earlier when an opportunity was provided by the trial Court and that his present attempt amounted to re-agitating the same facts, which were already adjudicated on merits. He contended that the cheques were issued by the petitioner on behalf of M/s. MBS Jewellers Pvt. Ltd. to discharge or reduce the company’s loan liability, and the bank, upon receipt, became the holder in due course with full authority to collect and adjust the cheque amounts in the company’s account. The counsel further submitted that allowing the petitioner to examine himself would be an abuse of the legal process, was impermissible under the principle of res judicata. Therefore, he prayed the Court to dismiss the criminal petition. 7. In the light of the submissions made by both learned counsel and on a careful perusal of the material available on record, it appears that the C.C. was of the year 2014, during which P.W.1 was examined and extensively cross-examined on 05.05.2015 and 15.06.2015. The trial concluded with a judgment rendered in the year 2020, and the appeal against the same was preferred in the year 2017. It is an undisputed fact that during all these years, from 2017 till 2024, the petitioner did not take any steps to recall or further cross-examine P.W.1. The present petitions came to be filed after an inordinate delay of nearly ten years from the institution of the case, without furnishing any satisfactory explanation for such delay. It is an undisputed fact that during all these years, from 2017 till 2024, the petitioner did not take any steps to recall or further cross-examine P.W.1. The present petitions came to be filed after an inordinate delay of nearly ten years from the institution of the case, without furnishing any satisfactory explanation for such delay. The reason now mentioned that further cross- examination is required to establish that the complainant bank was not a “holder in due course” and that there was no consideration does not justify reopening the evidence at such a highly belated stage. 8. It is well-settled that the powers under Sections 311 and 391 of the Code of Criminal Procedure are discretionary and are to be exercised sparingly, only to prevent a miscarriage of justice. These provisions are not intended to enable a party to fill up lacunae in its case or to reopen issues that have already been adjudicated. The test is whether the evidence sought to be adduced is essential for a just and proper decision of the case. 9. In the present case, the record discloses that P.W.1 was thoroughly cross-examined on two occasions, and the petitioner had full opportunity to put forth all relevant questions concerning the bank’s status as “holder in due course” and the alleged absence of consideration. Nothing prevented the petitioner from raising these aspects during the trial itself. The attempt to recall P.W.1 at this belated stage, after the conclusion of trial and during the pendency of appeal, clearly appears to be an afterthought. 10. The contention of the petitioner that the complainant bank was not a “holder in due course” under Section 9 of the Negotiable Instruments Act and that the cheques lacked consideration is essentially a question of law. Such a plea can be urged and adjudicated in the appeal on the basis of the evidence already available on record. Therefore, there is no necessity to recall P.W.1 or adduce further evidence to establish the same. The learned Sessions Judge rightly observed that the trial Court had already considered this issue and recorded a finding that the cheques were issued by the petitioner from his personal account towards discharge of part of the company’s debt and that the bank, having received the cheques in that context, became a holder for value and consequently a holder in due course. 11. 11. Further, the reliance placed by the learned Sessions Judge on the judgment of the Delhi High Court in Bank of India v. State & Others is well-founded. In that decision, it was held that when a banker negotiates a cheque drawn by a third party towards reduction of an overdraft or existing liability, the banker becomes a holder for value, and the pre- existing debt constitutes valid consideration. The principle laid down therein squarely applies to the facts of the present case. 12. The learned Sessions Judge has also rightly distinguished the judgment of the Hon’ble Supreme Court in Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others , which enunciated the circumstances under which powers under Section 391 Cr.P.C. may be invoked. The said provision is meant to secure the ends of justice in cases where essential evidence has been omitted or withheld, and its absence would result in failure of justice. In the instant case, the petitioner has neither demonstrated that any material evidence was unavailable nor shown that the proposed further evidence would materially affect the decision of the appeal. Therefore, reliance on the said judgment is misplaced. 13. The sequence of events clearly indicates that the applications were filed belatedly and appear to be an attempt to delay the appellate proceedings. The plea raised by the petitioner being purely legal in nature does not require further evidence. The learned Sessions Judge has considered all relevant aspects in their proper perspective and has assigned cogent and valid reasons for dismissing the petitions. Therefore, this Court does not find any merit in the criminal petition to interfere with the order of the trial Court and this Criminal Petition is devoid of merit and the same is liable to be dismissed. 14. In the result, the Criminal Petition is dismissed. Miscellaneous applications, if any pending, shall stand closed.