THE HONOURABLE SRI JUSTICE N.TUKARAMJI CRIMINAL PETITION No. 4723 OF 2025

ORDER

This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS, 2023’) seeking quashment of the order dated 12.03.2025 in Crl.M.P. No. 13 of 2024 in Crl.A.No. 23 of 2024 passed by the learned VI Additional Sessions Judge, Sathupally, and consequently to direct respondent No.2/complainant to produce loan documents obtained from Shriram City Union Finance Limited.

2. I have heard Mr. P.V.L.S. Sri Chakrapani, learned counsel, representing Mr. G.Ravi Chandrasekhar, learned counsel for the petitioner and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor, representing respondent No.1-State.

3. The petitioner/appellant, who is the accused in the Calendar Case, was convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter ‘the NI Act’). Aggrieved by the conviction, he preferred an appeal and, in the course of appellate proceedings, filed a petition under Section 391 read with Section 91 of the Code of Criminal Procedure, 1973 (hereinafter ‘the Cr.P.C.’), seeking a direction to respondent No.2/complainant to produce educational loan records pertaining to the complainant’s daughter as additional evidence before the appellate Court. This petition was dismissed by the appellate Court. Challenging the said dismissal, the petitioner/appellant has filed the present petition.

4. Learned counsel for the petitioner submits that the appellant specifically sought summoning of the complainant’s daughter’s educational loan documents to establish the complainant’s financial capacity, which is material to the adjudication of the appeal. It is further submitted that during the cross-examination of the complainant, the petitioner had raised questions and elicited responses regarding the complainant’s financial ability to extend the loan in question, thereby laying foundational relevance for the additional evidence. Despite this, the appellate Court summarily rejected the petition without due consideration of the evidentiary value and relevance of the documents sought. Therefore, it is urged that the impugned order be set aside and that appropriate directions be issued to summon and admit the said documents as additional evidence in the interest of justice and for effective adjudication of the appeal.

5. I have perused the materials on record.

6. From the record, it is evident that the petitioner/appellant/accused admitted issuance of the cheque in question but disputed the transaction as alleged by the complainant. Given this admission regarding both the issuance of the cheque and the signature, the statutory presumption under Section 139 of the NI Act operates in favour of respondent No.2/complainant. This presumption includes the existence of a legally enforceable debt or liability.

7. However, the petitioner/appellant has failed to clearly establish how the cheque came into the possession of the complainant. Moreover, it is unclear whether the issue of the complainant’s lending capacity was raised as a defence at the earliest possible stage of the proceedings. It is well-settled that mere assertions questioning the complainant’s financial capacity are insufficient unless substantiated by a probable and plausible defence. While the complainant has averred the existence of a loan transaction, the petitioner seeks to summon documents from the complainant’s banker in an attempt to demonstrate the complainant’s financial incapacity. However, the extent to which such documents would negate the complainant’s lending capacity remains speculative and unsubstantiated.

8. Considering similar circumstances, the Hon’ble Supreme Court in Tedhi Singh v. Narayan Dass Mahand, (2022) 6 Supreme Court Cases 735 in paragraph No.10 held that “10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act the complainant need not show in

the first instance that he had