The accused has a fundamental right to defend themselves, including summoning witnesses, to ensure a fair trial as enshrined in Section 243(2) of the Criminal Procedure Code.

JUDGMENT :

S.S. Mishra, J.

In the present case, the petitioner is facing charges for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”) in 1.C.C. Case No.1240 of 2018 pending before the Court of the learned J.M.F.C., Bhubaneswar. The complainant has been prosecuting the petitioner for dishonouring of the cheque amounting to Rs.25 lakhs bearing Cheque No.000597 dated 09.02.2018. The statutory legal notice was issued to the petitioner by the complainant under of the N.I. Act, to which the petitioner did not reply. Therefore, he has been prosecuted by the opposite party/complainant for purportedly having committed the offence under of the N.I. Act.

2. The petitioner, in his defence took the plea that during the year 2015, he incurred a hand loan of Rs.38 lakhs from the opposite party for the expansion of his business. As required by the opposite party/ complainant, the petitioner had to submit seven numbers of post-dated cheques as security for the aforesaid hand loan. It was also agreed between the parties that the petitioner will pay Rs.40 lakhs towards the full and final discharge of the loan amount along with the interest.

3. Since July, 2015, the petitioner allegedly started making repayments towards the same loan amount on installments. The petitioner claims that the opposite party asked him to deposit the instalment money in 2 bank accounts of one Ms. Ridhi Vora, the niece of the opposite party/complainant, who was then pursuing her studies in Canada. He is relying upon certain electronic communications to substantiate the same. The petitioner further claims that the opposite party had assured that the amount deposited in the account of her niece Ridhi Vora would be factored into the loan amount due. Accordingly, learned counsel for the petitioner contends that the petitioner has already paid about Rs.17 lakhs to Ridhi Vora, which ought to have been factored into the discharge of the liability towards the loan. However, it is contended by the learned counsel for the petitioner that, instead of taking into account the amount that the petitioner had already paid, the opposite party has utilized the post-dated cheques to prosecute him in as many as seven cases for allegedly having dishonoured all the seven post-dated cheques, which have been deposited by the opposite party with her banker.

4. The trial of the case was going on at an expected pace. To substantiate his defence, the present petitioner, on 20.12.2021, moved an application before the trial Court seeking issuance of summon to Ridhi Vora to examine her. The application came to be decided by the trial Court vide impugned order dated 11.03.2022. Learned trial Court rejected the said application, inter alia, stating as under:

“Heard. Perused the case record. The accused persons wants to examine Ridhi Vora, niece of the complainant on the pretext that he had paid huge sum of amount to her as per the instructions of the complainant in support of which he had filed his bank statement as well as whatsapp communication between him Ridhi Vora as well as the complainant. Regarding the whatsapp communication submitted by the accused, it is worth mentioning here that it is inadmissible as evidence u/s65B of the Indian Evidence Act, 1872. On the other hand, the complainant objected the petition and averred that this is the delaying tactics of the accused. The payment which the accused person claims to have been made to the niece of the complainant was made in the year 2016 while agreement for clearance of cheque marked as Ext.6 by the prosecution