Dismissed

M/s Usha Enterprises v. M/s Krishna Saa Fabs Pvt. Ltd.

Telangana HC16 Apr 2021CRLP/613/2021

Case brief

AI extract

What is this about?

Three criminal petitions filed under Section 482 Cr.P.C. sought to quash an order dismissing applications to mark documents and recall a witness. The High Court dismissed the petitions, holding that the petitioner's failure to file crucial documents despite prior opportunities amounted to negligence and did not warrant interference to fill prosecution lacunae.

What did the court decide?

The criminal petitions were dismissed; miscellaneous petitions pending therein stood closed.

M/s Usha Enterprises Vs M/s Krishna Saa Fabs Pvt. Ltd. — Cheque Dishonour | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE SIXTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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CRIMINAL PETITION NO: 6't3,628 AND 681 9F Zo21

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CRIMINAL PETITION NO: 613 OF 2021

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Between:

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M/s Usha Enterprises, Rep. by its [.4anager, Mr. Ashok Garg, Aged 54^yrs, Occ. Business, S/o Ghanshyamdas Garg,' H.No.7-2-21 4, Falehnagar, Railway Gate, Sanathnagar, Hyderabad.

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...PETITIONERI/PETITIONER/COMPLAINANT

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AND

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M/s KRISHNA SAA FABS PW. LTD., Rep by^{its ManagingDirector,} Doraswamy, Plot No. 17 and 18,lDA, Gajula Mandyam,^{Renigunta Mandal,} Tirupati, Andhra Pradesh.

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Sri. N. Doraswamy, S/o. Krishnaiah, age 57^{yrs, Managing Director,M//s Krishna} Saa Fabs Pvt. LtdPlot No. 17 and 18, lDA, Gajula^{Mandyam, Renigunta Mandal,} Tirupati, Andhra Pradesh ....RESPONDENT/RESPONDENT/ACCUSED NO¹ &²

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The State of Telangana, Rep by its^{Public Prosecutor,HighCourt of Telangana,} Hyderabad.

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...RESPONDENT

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Petition under Section 482 of Cr.P.C^praying that^{in the circumstancesstated} in the Memorandum of Grounds of Criminal Petition, the^{High Court may be pleased} to set aside the common order dt. 18.11.2O2O^passed in^{Crl.MP.sNo.441in} C.C.No.149 of 2016 on the file of the XXV Special^{Magistrate at Hyderabadand} consequently allow the applications filed to^{reopen,recall} and^{receive the} documents

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l.A. NO: 1 OF 2021

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Petition under Section 482 of Cr.P.C^praying that^{in the circumstancesstated} in the lvlemorandum of Grounds of Criminal Petition,^{the High Court may be pleased} to stay all further^proceedings including^{personal appearanceof the Petitionerin} C.C.No.149 of 2016 on the file of XXV Special^{Magistrateat Hyderabad,pending} disposal of main criminal^petition

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This Petition coming on for hearing,^{upon perusingthe Memorandum of} Grounds of Criminal Petition^{and uponhearingthe arguments of Sri Chandrasen} Law Offices, Advocate for the^{Petitioner and the Public Prosecutoron behalf} of the Respondent No.3 and of^{Sri M. Shiva shekar, Advocate for the} Respondent Nos. 1&2

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CRIMINAL PETITION NO: 628 OF 2021

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Between:

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M/s Usha Enterprises, Rep. by its Manager, Mr. Ashok Garg, S/o Ghanshyamdas Garg, Aged 54 years, Occ.Business, H. No. 7-2-214, Fatehnagar, Railway Gate, Sanathnagar, Hyderabad.

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...PETITIONERYPETITIONERYCOMPLAINANT

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AND

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M/s KRISHNA SAA FABS PVT.LTD, And 2 Others, Rep by its Managing Director Doraswamy Plot No. 17 and 18, lDA, Gajula Mandyam, Renigunta Mandal, Tirupati, Andhra Pradesh.

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Qr! N. Doraswamy, S/o. Krishnaiah, 57 years, Occ.Managing Director, M//s Krishna Saa FabsPvt. Ltd Plot No. 17 ahd iB, lDA, Gajul-a lfandyam, Renigunta M a nd a l' ri ru pati' oto:::. .'dEg"rti N D E N r/RE s^po N D E Nr/Ac c u s E D 1 & 2

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The State of Telangana, Rep by its Public Prosecutor, High Court of Telangana, Hyderabad

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.....RESPONDENT

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Petition under section 482 of cr.P.c praying that in the circumstances stated in the Memorandum of Grounds of criminal Petition, the High court may be pleased to set aside the common order dt. 1811112020 passed in Crl.MpS.No.440 in c.c.No.149 of 2016 on the file of the XXV speciat Magistrate at Hyderabad and consequently allow the applications filed to reopen, recall and receive the documents

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I.A, NO: oF 2021

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Petition under Section 482 ot cr.P.c praying that in the circumstances stated in the Memorandum of Grounds of criminal Petition, the High court may be pleased to stay all further proceedings including personal appearance of the petitioner in c.c.No.49 ot 2016 on the file of XXV special Magistrate at Hyderabad, pending disposal of main criminal petition

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of criminal Pelition and upon hearing the arguments of sri chandrasen Law offices, Advocate for the Petitioner and the public prosecutor on behalf of the Respondent No.3 and of sri M.shiva shekar, Advocate for the Respondent Nos. 1&2

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CRIMINAL PETIT|ON NO: 681 OF 2021

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Between:

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M/s Usha Enterprises, Rep.!y its Manager, Mr. Ashok Garg, s/o Ghanshvamdas Garg, Age 54 years occ. Btisiness n."No. i-z-itq, F"l"ririr6'r-r,"nJiffi;i'e;i" Sanathnagar, Hyderabad.

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,....PETITIONERYPETITIONERYCOMPLAINANT

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AND

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M/s KRISHNA SAA FABS PVT.^{LTD, Rep by its Managing Director Doraswamy'} Plot No. 17 and 18, lDA, Gajula Mandyam,^{ReniguntaMandal,Tirupati, Andhra} Pradesh.

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Sri. N. Doraswamy, Aged 57^{years Occ. Managing Director'[v'l//sKrishna Saa} Fabs Pvt. Ltd PloiNo.-17 and tg, tDA, Gajula Mandyam,^{ReniguntaMandal,} Tirupati, Andhra Pradesh .....RESPONDENT/RESPONDENT/ACCUSED^{NO 1 & 2}

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The State of Telangana, Rep^{by its Public Prosecutor,HighCourt of Telangana'} Hyderabad

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...,.RESPONDENT

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Petition under section 482 of Cr.P.C^{praying thatin the circumstancesstated} in the [vlemorandum of Grounds of criminal^{Petition, the High courtmay be pleased} tot set aside the common^{orderdt. 18.11.2020 passed in crl.MP.No.442 of 2020in} c.c.No..149 of 2016 on^{the file of the XXV SpecialMagistrateat Hyderabadand} consequently allow the^{applications filedto reopen, recalland receive the documents.}

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t.A. NO: 1 OF 202'l

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Petition under Section⁴⁸² ol^{cr.P.cpraying thatin the circumstancesstated} in the Memorandum of Grounds^{of criminal Petition, the High courtmay be pleased} to stay all further^{proceedings including personal appearanceof the Petitioner in} c.c.No.149 of 2016 on^{the file of XXV SpecialMagistrateat Hyderabad,pending} disposal of main criminal^petition

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This Petition coming on^{for hearing, upon peruslngthe Memorandum of} Grounds of Criminal Petition^{and upon hearingthe arguments of Sri Chandrasen Law} Offices, Advocate for^{the Petitionerand} the Public Prosecutor^{on behalf} of the Respondent^{No.3 and of Sri M} Shiva Shekar Advocate^{for the} Respondent Nos. l&2

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The Court made the following:^{COMMON ORDER}

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HON'BLE SRI JUSTICE K. LAKSHMAN

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CRIMI NAL PETITIO N Nos.6l3. 628 AND 68I OF 202r

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COMM ON ORDER:

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All these Criminal Petitions are filed by the petitioner - complainant in C.C.No.149 of 2016 under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'Code") to quash the common order dated l8.Il .2020 passed by the learned XXV Special Magistrate at Hyderabad in Crl.M.P.Nos.44l,4!0 and 442 of 2020 respecti,,rely.

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FACTS:

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i) The petitioner herein is complainant and respondent Nos. 1 and 2 are accused Nos. 1 and 2 in C.C. No. 149 of 2016. The petitioner herein filed C.C. No.149 of 2016 against accused Nos.1 and 2 for the offence under Section - 138 of the Negotiable Instruments Act, l88i (for short 'Act, 1881 ').

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ii) The petitioner herein filed an application under Section - 311 of Cr.P.C. vide Crl.P. No.440 of 2020 to reopen the matter for further chief-examination of PW.2 so as to mark some documents. It has filed an application under Section - 254 (2) of Cr.P.C. vide Crl.M.P. No.442 of 2020 to receive the documents i.e., authorization letter dated 10.04.2020 issued in favour of PW.2 and certified copy of partnership deed. It has also filed another application under Section - 3i1 of Cr.P.C vide Crl.M.P. No.441 of 2020 to recall PW.2 for the purpose of marking the said documents.

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KL,J Crl.P. Nos.613, 628 & 681 of 2021

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iii) The petitioner herein filed the above said thee applications on the grounds that at the time of filing the complaint, Mr. K. Giri, its Accountant was authorized to file cornplaint on its behalf. He left the : job and incumbent Mr. S. Maheshwar was authorized to represent the petitioner's firm. An authori4ation was also given to him by one of the partners of the petitioner's firm and the sarne was filed and marked as Ex.P I 7 in C.C. No. I 49 of 2016. But, it has not filed copy of deed of partnership since the same was filed in civil case. Later, attested copy was obtained and the same is being filed along with authorization letter in favour of PW.2. With the said contentions, the petitioner herein filed the above said three applications to re-open, to receive and to recall PW.2 for the purpose of marking the said documents.

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iv) Respondent Nos. I and 2 herein, accused therein, have opposed the said applications on the ground that the petitioner herein has filed the said applications at belated stage, only to fill up lacunae. The petitioner did not mentiiln any reason, much less satisfactory reason and, therefore, the said applications are liable to be dismissed.

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v) On consideration of the submissions made on either side, the trial Court vide common order dated 18.11.2020, dismissed all the said three applications.

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vi) Feeling aggrieved by the same, the petitioner herein filed the present three criminal petitions to quash the said common order.

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KL,J Crl.P. Nos.6l3,628 & 681 of 202l,

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3. SUBMISSIONS OF THf, PETITIONER:

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Mr. B. Chandrasen Reddy, leamed counsel for the petitioner, would submit that the petitioner herein is the complainant and it has to file authorization letter given to PW.2 and also copy of deed of partnership. If the said documents are received and marked as exhibits, no prejudice would be caused to the accused and, therefore, the same may be allowed on costs. l

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4. SUBMISSIONS OF RESPONDENT Nos.l & 2:

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i) Mr. M. Shiva Shekar, learned counsel for respondent Nos.1 and.2 - accused, would submit that despite giving ample opportunity, the petitioner did not file the said documents. The applications filed earlier vide Crl.M.P. Nos.1664, 1665 and 1666 of 2019 were allowed on27.01.2020 and even then, the pbtitioner did not choose to file the said documents. It is the specific case of the accused before the trial Court that PW.2 is not having authorization to represent the petitioner's firm and to give evidence on its behalf. After death of PW.1, now the petitioner herein intended to file authorization given in favour of PW.2 to fil1 up lacunae and to cover up omissions and commissions of petitioner, which is not permissible in law. There is difference in page number etc. With the said submissions, he sought to dismiss the present criminal petitions.

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5. FINDING OF THE COURT:

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i) A perusal of the record. would reveal that the petitioner herein has filed the complaint under Section - 200 of Cr.p.C. against

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KL,J Crl.P. Nos.613,628 &681 of 2021

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{

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respondent Nos.l and 2 herein for the offence under Section - 138 of the Act, 1881 in the month of August,2015, and cognizance was taken in 2016 and summons were issued to the accused. As per the list of documents appended to the said complaint, the petitioner filed as many as seventeen ( I 7) documents. Initially, Mr. K. Giri, Accountant of the petitioner's firm, was authorized to represent the firm and to file complaint. Accordingly, he filed the complaint and, thereafter, he left the company. Then, Mr. S. Maheshwar, was authorized to represent the petitioner's firm and he was examined as PW.i and marked Exs.Pl to P9. Since he died, PW.2 was authorized to represent the petitioner's finn. So, he filed his affidavit in lieu of chief-examination as PW.2 on 25.09.2017 itself, and he was crossexamined on'26.10.2017.

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ii) The record would further reveal that the petitioner herein has filed three applications vide Crl.M.P. Nos.1664, 1665 and 1666 of 2019, to reopen the complainant's evidence, to examine PW.2 and to mark the documents. The said three applications were allowed on 27.01.2020. The authorization letter which was issued in favour of Mr. S. Maheshwar, was marked as PW.17 through PW.2. He was cross-examined. Then the matter stood posted for arguments. While so, the petitioner herein has again fited the aforesaid three applications on 18.02.2020 vide Crl.M.P. Nos.440, 441 and 442 of 2020 contending that it intended to file authorization letter dated 10.04.2002 as well as copy of deed of partnership of petitioner's firm.

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KL,J Crl.P. Nos.6l3, 528 k 681 of2021 5

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According to the petitioner, the deed of^{partnership was filed in other} civil case and, therefore, it could not file the sarne. They^have obtained the same recently and now it intended to file the said document also.

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iii) A perusal of the complaint would also reveal that the complaint was filed through Mr.K. Giri - Accountant, whereas, it is the contention of respondent Nos.l and 2 that the said Giri was not authorized to represent the petitioner's firm before the Court and to file the complaint. The authorization given to him was not filed. According to the petitioner, the said Giri left its office and, therefore, he was substituted by one Mr. S. Maheshwar, who was examined as PW.1 and got marked Exs.Pl to P9. According to respondent Nos. I and 2, even PW.1 was also not properly authorized to represent the case. After examination of PW.l since he died, Mr. Ashok Garg, Manager of the petitioner's firm, stepped into shoes of PW.l and accordingly he was examined as PW.2. According to Accused Nos.l and 2, they took a specific plea that Mr. Giri as well as PW.¹ was not properly authorized to represent the petitioner's firm. To overcome the said lacunae, the petitioner's firm filed three applications vide Crl.M.P. Nos.1664, 1665 and 1666 of 2019 to receive the document, to reopen the case and to recall iW.Z to mark the authorization dated 08.08.2016 in favour of PW.1. However, the said applications were allowed on cost of Rs.4,000/- and accordingly, Ex.Pl7 authorization given in favour of PW.l got marked. However, during cross-

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KL,J Crl.P. Nos.613,628 & 681 of2021

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examination of PW.2, it^{was elicitedthat PW.2deliberately} suppressed the fact of^{deathof PW. 1 and got markedEx.P 1 7' In order} to overcome the said^{defects, the petitioners filedthe present three} applications.

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iv) A perusal of the authorization^{dated10.04.2002 soughtto} file and mark through^PW.2 was^{given by Indira Devi Garg and} Urmila Devi Garg,^{paftnersof petitioner's firm' It is relevant to note} that PW.2 is husband of^{one of the partnersof the petitioner'sfirm'} By^'rirtue of Authorization,^{dated10.04.2002,the petitioner's firm} authorized PW.2 to^{representthe petitioner firm before all statutory} authorities, Courts^and Quasi^{Judicial Authorities and Institutethe} civil and criminal^{proceedingsfor recovery of money payable to the} firm and other reliefs,^{It is also further authoredto executeand} submit all^{petitions, affidavits, plaints, counters and writtenstatements} etc., apart from deposing^{beforethe authorities on behalfofthe firm'}

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v) It is relevant to note that^{despitethe saidauthorizationdated} 10.04.2002 said to^{have giveri by the petitioner firm in favour of} PW.2, the complaint^{was filed:by the petitioner throughMr. K' Giri,} Accountant in August, 2015.^{It is the specific case of respondent} Nos.l and 2 herein that^{the said Giri is not having authorization to file} complaint on behalf of^{the petitionerfirm' It is also the specific} contention of respondent^{Nos.l and 2 that the petitionerfirm is not} being represented by^{a proper person and theyhave not filed deed of} partnership. A perusal of^{the deed of partnership would revealthat}

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KL,J Crl.P. Nos.613,628 & 681 of202l

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there is no stamp of any Civil Court and it is only a Photostat copy. It is also relevant to note that PW2, husband of one of the partners of the firm, has also signed the said deed of firm in the capacity of LA Holder / Manager. Even then, the petitioner did not file copy of the said authorization dated 10.04.2002 and also deed of partnership either at the time of deposition of PW. 1 or at the time of deposition of PW.2. At the cost of repetition, the petitions filed by the petitioner seeking to reopen the matter, to.receive the documents and to recall PW.2 were allowed vide common order dated 27.01.2020. On 03,02.2020, PW.2 was examined and cross-examined on the same day. Ex.P17, authorization given in favour of Mr. S. Maheshwar, was marked. But, the petitioner failed to mark the authorization given to Mr. K. Giri, who filed the complaint initially on behalf of the petitioner's firm. Despite giving ample oppor.tunity, the petitioner failed to file the said authorization as well as deed of partnership.

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vi) As stated above, the offence alleged against respondent Nos.l and 2 herein is under Section - 138 of the Act. 1881. Lritial burden lies on the petitioner herein to prove that cheques in dispute were issued to discharge legally enforceable debt. presumption under Section - 139 of the Act, 1881 is also available. Thereafter, the burden shifts on to respondent Nos.1 and 2 to disprove the case ofthe petitioner herein.

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vii) The Hon'ble Supreme Court as well as this Court time and agaih in a catena ofjudgments held that Courts have to adopt liberal

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KL,J Crt.P. Nos.613, 628 & 681 of202l

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approach while dealing^{with applicationsunder Section - 311 of} Cr.P.C. It is also relevant to^{note that in Mannan Shaikhv. State of} West Bengall, the Apex Court categorically^{held that powerto recall} the witness is to be exercised^{with circumspectionand only with the} object of arriving at a^{just decisionof the case and the same should} not prejudice the accused and should^{not permit to fill up the lacuna} by the prosecution.^{The said principle was also followed by the} Uttarakhand High Court^{in Vipin v. Stateof Uttarakhand2.}

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viii) In view of the law laid down^{by the Apex court, coming to} the case on hand, as discussed^{above, the petitioner did not file the} authorization letter^{given by it in favour of PW'2 and also the deed of} partnership. The authorization^given in^{favour of PW.2 was dated} 10.04.2002 itself. The deed^{of partnership is dated 01.04.2002.} Despite giving opportunity by^{the Court below by allowingthe} applications filed on^{27.01.2020, the petitioner did not file the said} documents. It is the specifrc^{caseof respondent Nos.l and 2 that the} petitioner herein invented the said documents^{only in the year 2020in} order to fill up lacunae.^{According to this Court, the petitioner filed} the said three applications^{viUe Cr1.M.P. Nos'440, 441 and 442 of} 2020 to fill up the said lacunae^{which are not permissible in law. The} Court below has rightly^{dismissedthe said applications on the ground} that the petitioner is^{not diligent in prosecuting its case and there was} negli.gence on its^{part. According to this Court,the impugned orderis}

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,. (20t4) r3 scc 59 '?.^{20t 8 crl.L.J.l50}

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KL'J Crl.P. Nos.613,628^{&681of 2021}

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well-reasoned and^{well-foundedand it does not warrant interference} by this Court.^{Thus, the petitionerfailed to make out any ground} warranting^{interferenceby this Courtand, therefore' the present} criminal^{petitionsare liable to be dismissed'}

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In view^{of the aforesaiddiscussion' all the above three}

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Criminal^{Petitionsaredismissed'}

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As a sequel,^{miscellaneouspetitions, if any' pendingin the}

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Criminal^{Petitions shallstand closed'}

SD/.V.SUDHA

ASSISTANT^REGISTRAR

//TRUE COPY//

Cil)

SECTION OFFICER

To,

The XXV^{Special Magistrate at Hyderabad} i. iii"'sirii""Tori"^{ofri""i 5.n. rliglr. Police Station' S R Nagar' Hvderabad} 5.^{'o""-CCi" sii cnanaras"nLawoffices,Advocate^[oPUC]}

¶102

i. f*o CCs to Fublic^{proseiutor, High Court for the State of Telanganaat} Hvderabad [OUT]

¶103