M/S. Shree Kedarnath Sugar Agro ... vs State Of Telangana
2022 Latest Caselaw 2396 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

      CRIMINAL PETITION Nos.3948 AND 3949 OF 2022

COMMON ORDER:

      Heard Mr. Pawan Kumar Agarwal, learned counsel for the

petitioners, Mr. C. Sharan Reddy, learned counsel for respondent No.2

and learned Assistant Public Prosecutor appearing on behalf of

respondent No.1 - State in both the petitions.

2. Criminal Petition No.3948 of 2022 is filed under Section -

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

quash the order dated 18.02.2022 passed in Crl.M.P. No.70 of 2022 in

Crl.A. No.223 of 2019 by the learned IV Additional Metropolitan

Sessions Judge, Hyderabad, while Crl.P. No.3949 of 2022 is filed to

quash the order dated 18.02.2022 passed in Crl.M.P. No.71 of 2022 in

Crl.A. No.222 of 2019 by the very same Court.

3. Lis involved in both the criminal petitions and the parties are

one and the same and, therefore, both the petitions are heard together

and are being disposed of by way of a common order.

4. Perusal of the record would reveal that the petitioners herein

are accused in C.C. Nos.199 and 200 of 2012, while respondent No.2

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herein is the complainant. The offence alleged against the petitioners

herein - accused is under Section - 138 of the Negotiable Instruments

Act, 1881 in both the cases. Vide judgment dated 04.02.2019, the

Court below convicted the petitioners herein for the said offence in

both the cases. Aggrieved by the said judgments, the petitioners

herein have preferred appeals vide Crl.A. Nos.223 and 222 of 2019

respectively, pending on the file of IV Additional Metropolitan

Sessions Judge, Hyderabad.

5. During the pendency of the aforesaid appeals, the petitioners

herein have filed an application under Section - 391 read with 311 of

the Cr.P.C. vide Crl.M.P. Nos.70 of 2022 and 71 of 2022 in Crl.A.

Nos.223 of 2019 and 222 of 2019, respectively, seeking permission to

file documents as mentioned in the list of documents and to lead

additional evidence in the said appeals. The appellate Court, vide

orders, both dated 18.02.2022, dismissed the said applications.

Challenging the said orders, the petitioners herein have filed the

present criminal petitions.

6. The petitioners herein have filed the above said applications

under Section - 391 read with 311 of the Cr.P.C. on the following

grounds:

KL,J Crl.P. Nos.3948 & 3949 of 2022

i) Petitioner No.2 - Accused No.1 is the signatory to the

cheque in dispute and he had signed as Managing

Director of accused No.1 Company;

ii) Petitioner Nos.2 to 4 - accused Nos.2 to 4 are only

Executive Directors and they are not responsible for the

day-to-day affairs of the said Company;

iii) During the pendency of the aforesaid appeals, a Company

Petition, under the provisions of Insolvency and

Bankruptcy Code, 2016, was filed, an Interim Resolution

Professional (IRP) was appointed;

iv) Respondent No.2 herein had also filed a civil vide O.S.

No.814 of 2021 on the file of II Additional Chief Judge,

City Civil Court, Hyderabad, and the same was decreed;

v) In view of the above, the petitioners herein want to file

resignation letter dated 15.10.2008; extract of Board of

Resolution, dated 08.11.2008 of accused No.1 Company;

Form No.23 pertaining to accused No.1 company; copy

of order passed in C.P. (IB) No.2851/MB/2018 and also

copy of the judgment and decree dated 02.02.2015 in

O.S. No.814 of 2012.

KL,J Crl.P. Nos.3948 & 3949 of 2022

7. The aforesaid application was opposed by respondent No.2

herein in both the appeals on the ground that the petitioners herein

were aware of the said facts including the fact that those documents

were in their custody only, even then, they have not filed the said

documents during the pendency of C.Cs. All the said facts were

considered by the appellate Court and, as such, there is no error in the

impugned orders.

8. Perusal of the record would reveal that respondent No.2

herein was examined as PW.1. On behalf of the petitioners herein,

they have not examined any witness and they have not filed any

document. PW.1 was cross-examined at length thrice i.e., 20.11.2017,

18.07.2018 and 14.08.2018. During the cross-examination on

20.11.2017, the petitioners herein have specifically posed certain

questions with regard to the details of the Directors, proceedings of

ROC including Exs.P9 and P9 (a). The judgment of the trial Court is

dated 04.02.2019. By the said date, the petitioners herein came to

know about the above said proceedings. The said proceedings /

documents were in the custody of the petitioners herein during the

pendency of the C.Cs and also by the date of pronouncement of the

judgments in the said C.Cs. i.e., 04.02.2019. Even then, the

KL,J Crl.P. Nos.3948 & 3949 of 2022

petitioners herein have not filed the said documents before the trial

Court in the said C.Cs. The only explanation offered by the

petitioners herein is that accused No.2, who is the Managing Director

of accused No.1 Company and father of petitioner Nos.2 and 4 and the

husband of petitioner No.3, used to look after the entire affairs of the

said Company and they are unaware of the same and, therefore, they

have not filed those documents during the pendency of the aforesaid

C.Cs.

9. As stated above, petitioner Nos.2 to 4 herein came to know

about the said documents during the pendency of the said C.Cs. itself,

and the said documents were in their possession only, even then they

have not filed the said documents before the trial Court. Further, the

offence alleged against the petitioners herein is under Section - 138 of

the N.I. Act. To prove the said offence, initial burden lies on

respondent No.2 herein that cheques in dispute were issued by the

accused in discharge of their legally enforceable debt and, thereafter,

it shifts upon the accused. There is no dispute that the cheques

belong to accused No.1 Company and accused No.2 being the

Managing Director of accused No.1 Company had signed on the said

cheques.

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10. Learned counsel for the petitioners herein have placed

reliance on the decision rendered by the Hon'ble Supreme Court in

Brig Shkhjeet Singh (Retd) MVC v. State of Uttar Pradesh1,

wherein the Apex Court held that there are no fetters on the power

under Section - 391 of the Cr.P.C. of the appellate Court. All powers

are conferred on the Court to secure ends of justice. The ultimate

object of judicial administration is to secure ends of justice. Court

exists for rendering justice to the people. There is no dispute with

regard to the powers of the appellate Court under Section - 391 of the

Cr.P.C. and there is no quarrel with regard to the said principle. But,

in the present case, the appellate Court has dismissed the application

on the ground that the petitioners herein have not given proper reasons

for not filing the documents during the pendency of the proceedings

before the trial Court. Therefore, the facts of the said case are

different to the facts of the present case.

11. As discussed above, though the petitioners herein have

cross-examined respondent No.2 herein (PW.1) at length thrice, they

have not filed the said documents during the pendency of the aforesaid

C.Cs. before the trial Court. The appellant Court had considered all

. 2019 (16) SCC 712

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the said aspects and dismissed both the applications vide order dated

18.02.2022. It is a reasoned order and there is no error in it

warranting interference by this Court. Further, the petitioners herein

have not made out any case to set aside the order under challenge.

Therefore, both the petitions fail and are liable to be dismissed.

12. Both the Criminal Petitions are accordingly dismissed

confirming the orders, both dated 18.02.2022 passed in Crl.M.P.

Nos.70 and 71 of 2022 in Crl.A. Nos.223 and 222 of 2019,

respectively, by the learned IV Additional Metropolitan Sessions

Judge, Hyderabad.

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

criminal petitions shall stand closed.

_________________ K. LAKSHMAN, J 7th June, 2022 Mgr