Damela Chennudu vs The State Of Telangana
2021 Latest Caselaw 1485 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.8626 OF 2019
ORDER:

This Criminal Petition is filed under Section - 482 of the Code

of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the order

dated 05.09.2019 passed in Crl.M.P.No.984 of 2019 in Crl.A.No.1004

of 2017 by the IV Additional Metropolitan Sessions Judge, City

Criminal Courts, at Nampally, Hyderabad.

2. Heard Mr. P.Pandu Ranga Reddy, learned counsel for the

petitioner/accused and Mr. P.Achut Rama Shastry, learned counsel for

the 2nd respondent and perused the record.

3. The facts of the case are that the petitioner herein is accused

in C.C.No.78 of 2014. The offence alleged against the petitioner is

under Section 138 of the Negotiable Instruments Act (for short 'the

Act'). The 2nd respondent/defacto-complaiant filed a complaint under

Section 200 Cr.P.C. vide C.C.No.78 of 2014 (old C.C.No.406 of 2014

before the trial Court/III Special Magistrate, Hyderabad, against the

petitioner for the offence under Section 138 of the Act. The trial Court

vide judgment dated 10.08.2017 convicted the petitioner for the said

offence. Feeling aggrieved by the said judgment dated 10.08.2017, the

petitioner preferred an appeal vide Crl.A.No.1004 of 2017 before the

IV Additional Metropolitan Sessions Judge, City Criminal Courts at

Nampally, Hyderabad, which is pending.

4. During pendency of the said appeal, the petitioner has filed a

petition vide Crl.M.P.No.984 of 2019 under Section 91 of the Cr.P.C.

KL,J Crl.P. No.8626 of 2019

seeking to summon the entire record in a case vide L.S.No.64 of 2014

from the Secretary, Legal Services Authority, City Civil Court,

Hyderabad. His contention is that the 2nd respondent has no financial

capacity to lend money under the disputed cheques. The appellate

Court has dismissed the said application vide order dated 05.09.2019.

Challenging the same, the petitioner filed the present Criminal

Petition.

5. Mr. P.Pandu Ranga Reddy, learned counsel for the petitioner

would submit that the 2nd respondent is not having financial capacity

to lend the money to the petitioner under the cheques in dispute. The

trial Court has not considered the said contention. Therefore, it is the

duty of the petitioner to prove the said fact that the 2nd respondent is

not having financial capacity to lend the money under the cheques in

dispute. According to him, the 2nd respondent has sought legal

services in L.S.No.64 of 2014 from the Secretary, Legal Services

Authority, City Civil Court, Hyderabad. The 2nd respondent has filed

an affidavit in support of his application for grant of legal services

wherein he has mentioned that he did not own movable or immovable

properties and his income in all sources (movable and immovable)

was of Rs.26,000/- per annum. By referring to the said affidavit and

also the certificate, the learned counsel for the petitioner would submit

that the 2nd respondent has no financial capacity to lend money under

the cheques in dispute. According to him, during the pendency of the

appeal, the appellate Court is having power to receive additional

evidence and therefore, the petitioner herein has filed an application

KL,J Crl.P. No.8626 of 2019

under Section 91 of the Cr.P.C. vide Crl.M.P.No.984 of 2019 to

summon the entire record in L.S.No.69 of 2014. The appellate Court

erroneously dismissed the said application vide impugned order dated

05.09.2019. With the said submissions, the learned counsel for the

petitioner sought to quash the impugned order.

6. On the other hand, Sri P.Achut Rama Shastry, learned

counsel for the 2nd respondent would submit that the petitioner did not

raise the said ground during the pendency of the trial in C.C.No.78 of

2014. The trial Court, after considering the evidence both oral and

documentary, convicted the petitioner vide judgment dated

30.08.2017. The petitioner herein only to protract the proceedings in

Crl.A.No.1004 of 2017, filed the present application vide

Crl.M.P.No.984 of 2019. The appellate Court has rightly dismissed

the said petition vide Crl.M.P.No.984 of 2019 by giving valid reasons.

Therefore, there is no error in the impugned order. With the said

submissions, the learned counsel for the 2nd respondent sought to

dismiss the present Criminal Petition.

7. The above stated facts and rival submissions would reveal

that the petitioner is an accused in C.C.No.78 of 2014. The offence

alleged against him is under Section 138 of the Act. The trial Court,

only after consideration of material available on record, convicted the

petitioner vide judgment dated 10.08.2017. The petitioner filed a

petition under Section 91 of the Cr.P.C. vide Crl.M.P.No.984 of 2019

in Crl.A.No.1004 of 2017 contending that the 2nd respondent herein is

not having financial capacity to lend money to the petitioner under the

KL,J Crl.P. No.8626 of 2019

cheques in dispute and he has availed legal services granted by the

Secretary, Legal Services Authority, City Civil Court, Hyderabad vide

L.S.No.64 of 2014. Therefore, the petitioner sought the said record in

L.S.No.64 of 2014. The appellate Court referred Sections 12 and 13 of

the Legal Services Authorities Act, 1987 (for short, the LSA Act')

and also reproduced the said provisions in the impugned order.

8. By referring to the same, the appellate Court observed that if

the persons who satisfy the requirements/criteria mentioned in Section

12 of the LSA Act, are entitled to receive legal services irrespective

of his financial status. He cannot be denied such benefits as provided

by the Constitution. The appellate Court further observed that it is

clear that the financial status of the 2nd respondent is immaterial

before it with regard to providing legal services if the requirements

under Section 12 of the LSA Act, are satisfied so that adjudicating the

appeal filed by the petitioner.

9. It is also mentioned in the impugned order that there is no

specific suggestion made to the 2nd respondent before the trial Court

about his financial status except making a vague suggestion that the

2nd respondent has no capacity to lend Rs.17,17,000/-. During the

Cross-examination of the 2nd respondent/P.W.1, it was elicited from

him that the source of income for loan is through mortgage of his

property i.e. plot. Basing on the said evidence and by referring to the

provisions under the LSA Act, the appellate Court, dismissed the

petition vide Crl.M.P.No.984 of 2019 filed by the petitioner under

Section 91 of the Cr.P.C. by the impugned order dated 05.09.2019.

KL,J Crl.P. No.8626 of 2019

10. It is relevant to note that, to prove the offence under Section

138 of the Act, initial burden lies on the 2nd respondent/complainant to

prove that the cheques in dispute were issued to discharge legally

enforceable debt by the petitioner. Thereafter, the burden shifts to the

petitioner/accused. A presumption under Section 139 of the Act, can

be drawn by the trial Court and the parties can take shelter of said

presumption under Section 139 of the Act. The trial Court, relying on

the evidence both oral and documentary, convicted the petitioner vide

judgment dated 10.08.2017 against which the petitioner herein

preferred an appeal vide Crl.A.No.1004 of 2017. In the said

judgment, the trial Court gave a categorical finding that the contention

of the petitioner that the 2nd respondent herein/P.W.1 has no source of

income or he has no capacity to lend such a huge amount, is not at all

sustainable. In view of the clear admission of petitioner borrowing

total loan of Rs.17,17,000/- from the 2nd respondent, it could be safely

held that the 2nd respondent has discharged his burden within the

purview of Section 58 of the Indian Evidence Act, and the petitioner

failed to rebut the said presumption.

11. The petitioner herein has raised several grounds in

Crl.A.No.1004 of 2017. There is no dispute with regard to the legal

position that the appellate Court is having no power to receive

additional evidence during pendency of the appeals on satisfaction of

certain conditions. Whereas, in the present case, the petitioner sought

to summon entire record in L.S.No.64 of 2014 from the Secretary,

Legal Services Authority, City Civil Court, Hyderabad, wherein

KL,J Crl.P. No.8626 of 2019

according to the petitioner herein, the 2nd respondent/complainant has

taken legal services by mentioning that his income from all sources

both movable and immovable is of Rs.26,000/- per annum. In section

12 of the LSA Act, it is laid down criteria for giving legal services to a

person if that person fulfils said criteria, irrespective of his financial

status. As per Section 13 of the LSA Act, the person who is seeking

legal services has to file an affidavit with regard to his income and

entitlement for legal services.

12. As discussed supra, the appellate Court by referring to said

criteria laid down under Section 12 of the LSA Act and Section 13 of

the LSA Act, with regard to details of income, and also referring to

cross-examination of the P.W.1/the 2nd respondent, dismissed the said

application vide Crl.M.P.No.984 of 2019 filed by the petitioner under

Section 91 of the Cr.P.C. vide order dated 05.09.2019.

13. As discussed supra, there is categorical finding by the trial

Court in the judgment dated 12.08.2017 in C.C.No.78 of 2014.

Though the appeal was filed in the year 2017, the petitioner has filed

the said petition under Section 91 of the Act, in the year 2019 i.e. two

years after filing the appeal.

14. The Hon'ble Apex Court in Basalingappa Vs.

Mudibasappa1 categorically held that presumption under Section 138

of the Act, if made out, the accused disputing financial capacity of the

complainant to pay amount and lead evidence to prove it, burden

would be on the complainant to establish his financial capacity which

(2019) 5 SCC 418

KL,J Crl.P. No.8626 of 2019

he was unable to do. The hon'ble Apex Court has summarized certain

principles in the said judgment. Therefore, the petitioner/accused has

to satisfy the same before the appellate Court in Crl.A.No.1004 of

2017. The petitioner instead of proving so, filed the petition under

section 91 of Cr.P.C. after lapse of two years. Section 91 of the

Cr.P.C. deals with issuance of summons to produce document or a

thing. As per the said provision, whenever any Court or any officer in

charge of a police station considers that the production of any

document or other thing is necessary or desirable for the purposes of

any investigation, inquiry, trial or other proceeding under this Code by

or before such Court or officer, such Court may issue summons, or

such officer a written order, to the person in whose possession or

power such document or thing is believed to be, requiring him to

attend and produce it, or to produce it, at the time and place stated in

the summons or order. .Section 391 Cr.P.C. deals with the power of

the appellate Court to take further evidence or direct it to be taken. As

per the said section, in dealing with any appeal under this Chapter i.e.

Chapter No.XXIX of Cr.P.C, the Appellate Court, if it thinks

additional evidence to be necessary, shall record its reasons and may

either take such evidence itself, or direct it to be taken by a

Magistrate, or when the Appellate Court is a High Court, by a Court

of Session or a Magistrate. Whereas, the petitioner herein filed an

application under Section 91 of Cr.P.C. before the appellate Court in

an appeal vide Crl.A.No.1004 of 2017. Thus, the petitioner herein has

not filed proper application by mentioning proper provision. As

KL,J Crl.P. No.8626 of 2019

discussed supra, the appellate Court dismissed the said petition filed

by the petitioner vide order dated 05.09.2019 by giving reasons and

by referring Sections 12 and 13 of the LSA Act, and also the cross-

examination of the 2nd respondent/ (P.W.1). Therefore, the petitioner

failed to prove his case that the 2nd respondent is not having financial

capacity to lend money to the petitioner under the cheques in dispute.

15. In view of the above said discussion and facts and

circumstances of the case, this Court is of the considered opinion that

the impugned order is a reasoned one and it is well founded without

any error and needs no interference by this Court and the present

Criminal Petition is liable to be dismissed.

16. In the result, the Criminal Petition is dismissed.

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

                                                     _________________
                                                     K. LAKSHMAN, J
Date:         .06.2021.
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