Telangana High Court

Nukala Sugunamma, vs Mamidi Prabhakar, on 25 November, 2025

      THE HON'BLE SMT.JUSTICE TIRUMALA DEVI EADA

              CRIMINAL PETITION No.13211 of 2025

ORDER:

This Criminal Petition is filed by the petitioner-accused

aggrieved by the order dated 17.07.2023 passed in Crl.MP No.7 of

2025 in Crl.A. No.21 of 2021 by the V Additional Sessions Judge at

Miryalaguda, Nalgonda District, whereunder the petition filed under

Section 391 Cr.P.C., seeking to adduce additional evidence before

the Sessions Court, is dismissed.

2. Heard Sri G. Sundaresan, learned counsel for the

petitioner, Sri N.V. Anantha Krishna, learned counsel for the

respondent No.1 and Sri Jithender Rao Veeramalla, learned

Additional Public Prosecutor for the respondent No.2-State.

3. The learned counsel for the petitioner has submitted that

the petitioner is the accused in CC No.1235 of 2015 for the offence

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

Act') and the same ended in conviction and sentence against the

petitioner. Challenging the said judgment of conviction, the petitioner

filed Criminal Appeal No.21 of 2021 on the file of the V Additional

Sessions Judge, Miryalaguda. He further submitted that during the

pendency of the said appeal, the petitioner filed a petition under

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Section 391 Cr.P.C., before the appellate court to recall the witness-

PW.1, respondent No.1 herein, to enable her to further cross-

examine PW.1, on his evidence given in the money recovery suit

filed by him against the petitioner vide O.S. No.832 of 2015 on the

file of III-Additional district court, Ranga Reddy District. Learned

counsel for the petitioner further submitted that in the evidence of

respondent No.1-de facto complainant in O.S.No.832 of 2015,

several contradictions and variations were brought out and that she

intends to confront the said contradictions and variations by recalling

PW.1, and that the appellate court ought to have allowed the petition

to enable the petitioner to adduce the additional evidence by

summoning PW.1. He further submitted that the contradictions and

the variations in the evidence of PW.1 in the money recovery suit

may help the petitioner in proving her innocence, which may end up

in acquittal, but the appellate court has dismissed the petition, which

may cause prejudice to the rights of the petitioner. He, therefore,

prayed to set aside the impugned order and allow the application

filed by the petitioner under Section 391 Cr.P.C. Learned counsel for

the petitioner has relied upon the decision of the High Court of

Andhra Pradesh in Telanakula Kasi Viswanadham v. Pokuri

Maruthi Prasad 1.

2019(4) ALT 223 (AP)

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4. The learned counsel for the respondent No.1 has submitted

that the evidence of PW.1 in the money recovery suit is irrelevant in

the present case and that under Section 391 Cr.P.C., only additional

evidence has to be adduced, but a witness before the civil court

cannot be recalled in the criminal case. He further submitted that the

suit is filed in the year 2015 and eversince then, it has been

prolonged and the CC under Section 138 of NI Act is also filed in

2015 and that it has been dragged on for the past 10 years, but till

date the respondent No.2 is denied the returns from the petitioner

inspite of proving his case under 138 of NI Act. He further submitted

that the petitioner has filed the present petition only to drag on the

proceedings and that the petition itself is not maintainable for the

relief sought for by the petitioner. He, therefore, prayed to dismiss

the petition and uphold the order passed by the appellate court.

5. Perused the record.

6. The petitioner is the accused in a case under Section 138

of NI Act vide CC No.1235 of 2015. The said case was ended in

conviction, against which the petitioner filed Crl.A. No.21 of 2021

before the court of V Additional Sessions Judge, Miryalaguda.

During the pendency of the appeal, the petitioner has filed a petition

under Section 391 Cr.P.C. vide Crl.M.P. No.7 of 2025 before the

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appellate court. Through the said application, the petitioner wants to

adduce additional evidence by marking the deposition of PW.1

recorded in the money recovery suit filed against her by the

respondent No.1 and further she wants to cross-examine PW.1 by

recalling him in the appeal. Section 391 Cr.P.C. is extracted

hereunder for the sake of reference:

"391. Appellate Court may take further evidence or direct it to be taken.

(1) In dealing with any appeal under this Chapter, 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.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."

7. Thus, the additional evidence can be taken by the appellate

court or it can direct the trial court to take additional evidence in

appropriate cases by recording reasons for taking additional

evidence. The said discretion given to the appellate court is not

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intended to fill up the lacuna in the prosecution evidence or to make

out the case different from the one already on record. In the present

case, the petition is filed to adduce the additional evidence by

marking the deposition of PW.1-de facto complainant adduced by

him in O.S. No.832 of 2015 filed for recovery of money against the

petitioner herein by the de facto complainant. It is the case of the

petitioner that she could bring out several variations and

contradictions in the evidence of PW.1 during the course of cross-

examination in the said suit. Through the application under Section

391 Cr.P.C., the petitioner intends to mark the said deposition and

further wants to summon PW.1 for further cross-examination in this

case.

8. It is pertinent to observe in this regard that whether the

deposition in a civil case is relevant in the criminal proceedings.

Under Section 391 Cr.P.C., the court shall summon and examine or

recall or re-examine any person, if his evidence appears to be

essential to the just decision of the court. In a case under Section

138 of NI Act, it would be sufficient if the complainant proves his

case that a cheque was issued for a legally enforceable debt and

that it is returned by the banker for the reasons stated therein and

further a notice to be issued within a period of (15) days from the

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date of such return and a complaint needs to be filed within a period

of one month from the expiry of the said (15) days. If these

ingredients are satisfied, then the offence under Section 138 of NI

Act gets proved. The said ingredients were held by the trial court to

be proved and thus, the petitioner herein was convicted. Now, he

wants to rely upon the deposition of PW.1 in a civil suit in the appeal

filed by him to prove his innocence. In what way would the said

deposition help the petitioner to dislodge the ingredients under

Section 138 of NI Act, is a big question.

9. The defence taken by the petitioner before the trial court is

that she did not issue the cheque in dispute towards a legally

enforceable debt, but the respondent No.1 in collusion with one Gali

Narayana Reddy, who worked under her husband in the Bar &

Restaurant run by them at Miryalaguda and entrusted to keep with

him their signed blank cheques and promissory notes for the

purpose of business and thus, the respondent No.1 has misused the

said cehques and promissory notes. It is borne out by record that in

the cross-examination, PW.1 has deposed before the trial court in

this case that he was acquainted with Gali Narayana Reddy at

Miryalagua as he worked under one Seetharama Reddy, husband of

the petitioner. But, in the evidence given in the civil suit i.e. O.S.

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No.832 of 2015, he deposed that he had seen Gali Narayana Reddy

for the first time at his residence at Hyderabad when the petitioner

and her husband approached him for obtaining loan and thereafter

on the day of executing the promissory note and lastly while issuing

the cheque in dispute. The petitioner intends to put forth the above

statement of PW.1 in additional evidence.

10. The contention of the petitioner is that in the evidence

given by the respondent No.1 in the civil suit, he deposed that both

the cheque and the promissory note were executed by the petitioner

on the same day. But, in the present case, he alleged that after six

months of executing the promissory note by the petitioner for an

amount of Rs.16,11,000/-, when he demanded her to repay the

amount, she issued the cheque in dispute towards discharging the

said debt. Thus, this is also a contradiction on which the petitioner is

banking upon to adduce the deposition of PW.1 before the civil court

as additional evidence in the present case. He relied upon the

decision of the High Court of A.P. in Telanakula Kasi

Viswanadham's case (cited supra), wherein it was held that:

"As it is the case of the revision petitioner/respondent in the instant OP that the witness (PW1) made a statement in his present deposition contrary to contain admissions, which he made in the deposition given by him in the former judicial

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proceeding, the contrary statements in his said previous deposition can be confronted to him in his cross-examination

- In the result the Civil revision petition is allowed and the impugned order is set aside - The trial Court is now directed to permit the counsel for the revision petitioner/respondent in the OP to further cross-examine PW1 and elicit answers by confronting to him the portions in his deposition given - As a sequel to this order, the trial Court shall suo motu recall the witness PW1 for the above purpose, if the evidence of the said witness is already closed."

11. But, in the present case, admittedly, the judgment in CC

No.1235 of 2015 for the offence under Section 138 of NI Act is prior

in time when compared to the evidence adduced by the respondent

No.1-de facto complainant before the civil court in the money

recovery suit. Under Section 33 of the Indian Evidence Act, the

evidence given by a witness in a previous judicial proceeding is

relevant in the subsequent judicial proceeding for the purpose of

proving the truth of the said facts. But, here the evidence of PW.1 is

subsequent to the judgment passed by the trial court. However, the

contention of the learned counsel for the petitioner is that the appeal

is continuation of the trial proceedings and hence, the said evidence

can be taken in this case and that the petitioner should be permitted