IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.09.2022 Coram:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN Criminal Revision Case No.965 of 2022 and Crl.M.P.No.10193 of 2022 L.Ramalingam ... Petitioner Vs.

B.Velumani ... Respondent Prayer : Criminal Revision filed under Section 397 read with 401 of Criminal Procedure Code, praying to set aside the partly allowed the order passed in C.M.P.No.600 of 2021 dated 17.05.2021 in S.T.C.No.557 of 2019 on the file of Judicial Magistrate FAST Track Court No.I at Erode.

For Petitioner : Mr.V.Karnan . For Respondent : Mr.L.Mouli

ORDER

The Criminal Revision case has been filed seeking to set aside the partly allowed order, passed in C.M.P.No.600 of 2021 dated 17.05.2021 in S.T.C.No.557 of 2019 on the file of Judicial Magistrate Fast Track Court No.I at Erode.

2. The petitioner is accused and the respondent is complainant. The respondent has filed a complaint against the petitioner in S.T.C.No.557 of 2019 on the file of the Judicial Magistrate Fast Track Court No.I, Erode, under Section 138, 141 and 142 of the Negotiable Instruments Act. During, pendency of the case, the petitioner filed a petition in C.M.P.No.600 of 2021 under Section 254(2) Cr.P.C. to permit the petitioner to examine the listed witnesses on his side. The learned Judicial Magistrate, dismissed the same by order dated 17.05.2022. Against which, the present revision has been filed before this Court.

3. The contention of the learned counsel for the petitioner is that the respondent/complainant has not stated the place of issuance of the check. Even during the enquiry when the complainant was examined as P.W.1, neither in the chief examination nor in the cross examination, he has specifically stated the place where he received the cheque. According to him, the petitioner was in Thoothukudi on the date mentioned in the alleged cheque. Therefore, the petitioner could not have issued the cheque on the date mentioned in the alleged cheque. In order to substantiate his defence, he wanted to examine 4 of the persons from Thoothukudi who are stated to have been present in Thoothukudi at the time when the petitioner was in Thoothukudi on the date mentioned in the cheque. Though the petitioner had not taken the defence of alibi on earlier occasion, however the respondent has mentioned in his counter that the petitioner has taken the plea of alibi. The Court below also failed to consider the claim of the petitioner. Though the petitioner made request before the Court below to examine 4 persons in the list of witnesses, the Court below dismissed the petition in respect witness Nos.2 to 4 and only allowed to examine the witness No.1 shown in the list of witness. Hence, the present revision petition has been filed before this Court.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the records available on record.

5. The petitioner has not denied the signature. Though he has taken several defence, even in his reply notice as well as during cross examination of P.W.1, the petitioner has not stated about his presence at Thoothukudi on the particular date. Neither in the reply notice nor put any suggestion before the P.W.2. After closing of the complainant side evidence and after completing the 313 questioning, the petitioner has opted for taking such a defence and filed the petition. First time, the petitioner has stated that on the date mentioned in the alleged cheque, he was in Thoothukudi and in order to substantiate the same, he wanted to examine list of witnesses 1 to 4 mentioned in the said petition. Since, the petitioner on earlier occasion either in the reply notice or during cross examination, never put such a suggestion that he was in Thoothukudi at the time of issuance of alleged cheque, the trial Court rightly disallowed the petition in respect of list of witnesses No.2 to 4 and allowed only in respect of the witness No.1 in the list of witnesses to be examined.

6. considering the fact