Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Mad) 1659

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.K. ILANTHIRAIYAN, J.
S.M.D. Mohamed Abdul Khader - Appellant
Versus
Muniswari - Respondent
Crl.R.C(MD) No. 954 of 2021 & Crl.M.P(MD) No. 11521 of 2021
Decided On : 13-04-2022

Advocates appeared:
For the Petitioner:A. Sirajudeen, Senior Counsel, M. Subash Babu, Advocate. For the Respondent:B. Prahalad Ravi, Advocate.

The accused has the right to examine witnesses and produce materials to disprove the case of the complainant in a case under Section 138 of the Negotiable Instruments Act.

Headnote:
Negotiable Instruments Act - Examination of Witnesses - Section 138 of Negotiable Instruments Act - Section 397, Section 401 of Cr.P.C - Crl.M.P.No.7611 of 2019 in S.T.C.No.8 of 2018 - Section 243 of Cr.P.C
Fact of the Case:

The petitioner, an accused, filed a petition under Section 397 read with Section 401 of the Code of Criminal Procedure to set aside the order dismissing the petition filed under Section 243 of Cr.P.C to issue witness summons to the witnesses in a case under Section 138 of the Negotiable Instruments Act.
Finding of the Court:

The court held that the accused can rebut the evidence of the complainant by examining witnesses and producing materials to disprove the case of the respondent, citing a recent judgment (Crl.A.No.362 of 2022) which emphasized the accused's right to demonstrate that the complainant did not have the capacity to lend the loan.
Issues: The main issue was whether the accused had the right to examine witnesses to disprove the case of the respondent in a case under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court's decision was influenced by the interpretation of the accused's right to demonstrate that the complainant did not have the capacity to lend the loan, as emphasized in the recent judgment (Crl.A.No.362 of 2022). The court emphasized the accused's right to produce independent material, examine witnesses, and cross-examine the complainant's witnesses to establish a probable defense.
Final Decision: The order dismissing the petition to issue witness summons was set aside, and the Criminal Revision Case was allowed.

JUDGMENT

(Prayer: Criminal Revision Case filed under Section 397 read with Section 401 of the Code of Criminal Procedure, to call for the records relating to the order passed by the learned Judicial Magistrate No.I, Ramanathapuram in Crl.M.P.No.7611 of 2019 in S.T.C.No.8 of 2018 dated 23.11.2021 set aside the same.)

1. This revision has been filed to set aside the order passed in Crl.M.P.No.7611 of 2019 in S.T.C.No.8 of 2018 dated 23.11.2021 on the file of the learned Judicial Magistrate No.I, Ramanathapuram, thereby dismissed the petition filed under Section 243 of Cr.P.C to issue witness summons to the witnesses enumerated in the list of witnesses.

2. The petitioner is an accused and the respondent is the complainant. The respondent lodged a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, alleging that the petitioner had borrowed a sum of Rs.8,00,000/- as a hand loan on 21.08.2016. In order to repay the same, the petitioner issued cheque for a sum of Rs.8,00,000/- and the same was presented for collection. However, it was dishonoured for the reason that 'account closed'. After causing legal notice as contemplated under Section 138 of the Negotiable Instruments Act, the petitioner filed the complaint and the same has been taken on the file of the learned Judicial Magistrate No.I, Ramanathapuram. After completion of the evidence of the complainant, the petitioner made a statement under Section 313 of Cr.P.C and specifically stated that the petitioner has evidence on his side. However, the Court below directed the petitioner to file appropriate petition to issue summons to the list of the witnesses. Accordingly, the petitioner filed a petition in Cr.M.P.No.7611 of 2019 on the file of the learned Judicial Magistrate No.I, Ramanathapuram under Section 243 of Cr.P.C along with the following list of witnesses, which was dismissed by the trial Court:-

Sl. No.	Name ad address of thewitness	Nature of evidence
1.	Mr.Sahabudeen, Auditor, M/s.Jaleel & Co., 120, Vepery High Road, Chennai - 600 007.	To bring the documents and records relating to the income and asset of the accused and his family members and depose about the financial status of the accused and his family members.
2.	Mrs.Muniswari, W/o.Mr.Ramesh, Ex.Panchayat, President, Palakkarai Village, Ramnad Taluk.	To bring the documents relating to her land holdings, bank passbook of all her bank accounts for the period from 01.01.2015 till 01.01.2019, family ration card, application given by her to the Schools to admit her wards in those Schools.
3.	Mr.Sathish, Brother of Muneswari, Palakkarai Village, Ramnad Taluk.	To depose about his acquaintance with the accused, details about his relationship and dealings with the complainant.
4.	The Manager, Sriram City Union, Finance Limited, 409, KTM Salma Centre, 1^st Floor, Vandikara Street, Ramanathapuram – 623 501.	To bring the loan application submitted by the complainant for hire purchase of the two wheeler bearing Registration No.TN-65- R-7750 and also the copy of the statement of account of that loan account and depose about the same.
5.	The District Collector, Ramanathapuram District, Ramanathapuram.	To produce and depose about the affidavit submitted by the complainant regarding her assets and liabilities at the time of submission of her nomination in the last local body election held in October, 2011 for the post of President of R.S.Madai Panchayat.
6.	The Manager, State Bank of India, Ramanathapuram Branch, Ramanathapuram.	To produce and depose about the statement of account of the complainant bearing SB Account No.10776860254 for the period commencing from 01.01.2015 till 01.01.2019.
7.	The Manager, Indian Bank, Ramanathapuram Branch, Ramanathapuram.	To produce and depose about the statement of account of the complainant bearing SB Account No.6136583110 for the period commencing from 01.01.2015 till 01.01.2019.
8.	The Tahsildar, Ramanathapuram Talu