ORDER

This Criminal Original Petition is directed against the order dated

24.07.2018 by the learned Judicial Magistrate, Nanguneri, treating the witness D.W.1 as hostile witness while recording the evidence of D.W.1 in C.C.NO.133 of 2016.

2. The petitioner is the complainant and he filed a complaint under Section

200 Cr.P.C., against the respondent herein for the alleged offence under Section 138 r/w 142 of the Negotiable Instruments Act. It is not in dispute that the complainant has examined three witnesses on his side and closed his side evidence and that the respondent has commenced his side evidence by summoning and examining one Sharmila Rose as D.W.1.

3. The case of the complainant is that the respondent approached the complainant through one V.Maheshwaran and borrowed a sum of Rs.4,00,000/- on 07.06.2014 to meet out the family necessity promising to repay the same within one year along with interest, that the respondent has paid interest to the tune of 64,000/- on 18.10.2015 and agreed to repay the principal amount within one month, that the respondent has issued a post dated cheque of Indian Overseas Bank, Sathankulam Branch, dated 18.11.2015, that when the cheque was presented for collection, the same was returned for want of funds in the Bank account of the accused, that the petitioner has sent a legal notice, dated 17.12.2015, demanding the accused to pay the amount covered by the cheque, that the respondent after the receipt of notice, has sent a belated reply on

05.01.2016 with false particulars and that since the accused has not chosen to pay any amount, the petitioner was constrained to lodge the above complaint.

4. It is evident from the records that the respondent has taken a defence that the accused is a distant relative of Sharmila Rose, that when the mother of the accused was working as an agent in MRDT concern, Sharmila Rose had deposited Rs.5,00,000/- accepting the words of the accused, that the said Sharmila Rose had taken the Indian Overseas Bank cheque for Rs.5,00,000/- as a security from the accused, that the said Sharmila Rose had returned that old cheque and received a cheque, now involved in this case and that the said Sharmila Rose had set up her husband's friend Anantha Kumar and filed the above complaint through him.

5. No doubt, the complainant has specifically disputed the above defence put forth by the accused. When the case was pending for the defence evidence, the accused has summoned the said Sharmila Rose as witness on his side and also examined in chief. After recording of evidence to some extent, the accused has requested the Court to treat the witness D.W.1 as hostile, as she was denying the receipt of the cheque involved in the case, after handing over the old cheque. Though the complainant side has raised objection, the learned Magistrate has passed the impugned order treating the witness D.W.1 as hostile and permitted the defence to cross-examine the said witness under Section 154 of the Indian Evidence Act. Aggrieved by the said order, the complainant has come forward with the present Criminal Original Petition.

6. Before entering into further discussion, it is necessary to consider the legal position.

7. No doubt, the learned Counsel for the complainant has cited a decision of this Court in S.Murugesan and two others Vs. S.Pethaperumal and two others reported in AIR 1999 Madras 76 before the trial Court as well as before this Court. It is necessary to refer the decision of the Hon'ble Apex Court in Gura Singh vs The State Of Rajasthan (Crl.A.No.1184 of 1998), dated 06.12.2000, wherein the Hon'ble Supreme Court, while considering the treating of witness as hostile under Section 154 of the Indian Evidence Act, has held as follows:

“The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling t