IMPORTANT POINT
Right of accused to have his witnesses examined or to have documents produced on his side cannot be denied.

JUDGMENT

Aruna Jagadeesan, J.— This revision is directed against the order passed by the learned Judicial Magistrate No.1, Kuzhithurai dated 23.1.2013 in CC No. 149 of 2005 dismissing the petition filed under Section 254(2) of Cr.P.C.

The complaint is filed under Section 138 of Negotiable Instruments Act against the petitioner. The complainant’s case is that on 6.8.2004, the petitioner/accused borrowed a sum of Rs. 2 lakhs from the complainant at the complainant’s residence to discharge a debt and on the same day, the accused issued a cheque bearing No. 652791 dated 6.12.2004 for a sum of Rs. 2lakhs drawn at State Bank of India, Karungal Branch. The cheque was presented on 6.1.2005 for collection in Tamil Nadu Merchantile Bank at Pallihadi and the same was dishonoured on the ground that insufficient fund. Thereafter, on 1.2.2005, the complainant issued a statutory notice to which the accused sent a reply disputing all the averments stated in the notice. The complainant examined himself as PW1. Thereafter, the accused wanted to examine defence witnesses and he submitted a list of defence witnesses and filed a petition under Section 254(2) of Cr.P.C praying to the Court to issue summons to those witnesses. The accused wanted to examine 7 witnesses and submitted a list to that effect. The said petition was opposed by the complainant that the witness schedule filed by the petitioner is not related to the case on hand and the same is filed only to drag on the proceedings.

2. The said petition was dismissed by the learned Magistrate on the ground that the petition was filed by the accused only to drag on the proceedings and since the case is pending for arguments it was not open to the accused to file petition under Section 254(2) of Cr.P.C to examine the witnesses stated in the witness schedule.

3. Heard the learned Counsel appearing for the parties and perused the materials available on record.

4. The learned Counsel for the petitioner submits that the grievance of the petitioner is that the learned Magistrate refused to examine the witnesses and held that it is not necessary to examine those witnesses cited by the petitioner and refused to issue summons. He would further submit that the learned Magistrate was not justified in passing the impugned order as it would result in a total destruction of his case.

5. It is further submitted by the learned Counsel for the petitioner that it has been averred in the complaint that the petitioner accused borrowed the amount at the complainant’s residence on 6.8.2004 and issued the cheque on the same day but the real fact is that the petitioner /accused was in a remote village in Nellur in Andhra Pradesh for his treatment and to rebut the evidence let in by the complainant the witnesses cited by him in the witness schedule are necessary to be examined. The learned Counsel pointed out that the witnesses cited in the list namely 1 and 2 are necessary to prove that the petitioner/accused was in Nellur taking treatment from a private medical practitioner.

6. It is further submitted that the examination of witness No.2 is necessary as the witness No.2 had written a letter to the petitioner while he was in Nellur on the date of issuance of cheque. The learned Counsel pointed out that that the complainant in his evidence while he was examined as PW1 stated that he was a ‘A’ class contractor and had sufficient funds to advance loan to the petitioner. In order to rebut his evidence that the had no sufficient funds and in fact he had taken loan from the Primary Agricultural Co-operative Bank even in the year 2002 and he is yet to discharge the said loan, the petitioner wanted to examine witness Nos. 3 to 7 cited in the witness schedule. The learned Counsel would submit that it is really very necessary to examine those witnesses and hence shutting out the same would amount to complete denial of justice.

7. On the other hand, the learned Counsel for the respondent pointed out that attempt of the petition