IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.02.2022

CORAM

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.O.P.No.8432 of 2021

and

Crl.M.P.No.5558 of 2021

A.Rosali

@ Rose

... Petitioner

Vs.

J.Kasper

... Respondent

PRAYER: This Criminal Original Petition is filed under Section

482 of the Criminal Procedure Code, to call for the records

relating to Crl.M.P.No.117 of 2020 in C.C.No.119 of 2017 pending

on the file of learned Fast Track (Judicial Magistrate Level) at

Alandur and set aside the same.

For Petitioner

: Mr.K.Prasanthan

For Respondent

: Mr.S.Sathyaray

O R D E R

The Criminal Original Petition has been filed to set

aside the Crl.M.P.No.117 of 2020 in C.C.No.119 of 2017 pending

on the file of learned Fast Track Court (Judicial Magistrate

Level) at Alandur.

2. The petitioner/accused is facing trial for offence

under Section 138 of the Negotiable Instruments Act,1988 in

C.C.No.119 of 2017 on the file of Learned Fast Track Court

(Judicial Magistrate Level), Alandur.

3. Brief facts of the case are as under:-

(i) The petitioner/accused is alleged to have

borrowed money from the respondent/complainant on various dates

for her business and her daughter's education, which had

accumulated to the tune of Rs.7,55,000/- for which, she had

issued a cheque bearing No.569245 dated 19.2.2017, however, when

it was deposited with the bank, the cheque was dishonoured by

https://hcservices.ecourts.gov.in/hcservices/

the banker with an endorsement "fund insufficient". The notice

sent by the respondent /complainant on 28.2.2017, though had

been acknowledged by the petitioner on 2.3.2017, she had failed

to repay the amount and hence, the respondent/complainant was

constrained to approach the court.

(ii) The complaint was taken on file in

C.C.No.119 of 2017 on the file of the Fast Track (Judicial

Magistrate Level), Alandur and the respondent/complainant had

examined himself as PW1 and he was cross-examined. Thereafter,

the petitioner/accused examined herself as DW1 and examined one

Prabha as DW2 and both of them were also cross-examined.

(iii) At this stage, the petitioner/accused filed

an Application to re-open the evidence and examine herself as

witness to mark some documents to establish her case that she

had no necessity to borrow such a huge amount from the

respondent/complainant and she had met out the expenses for her

daughter's education by selling out her property and since she

was not able to produce such documents when she was originally

examined in chief.

(iv) The said Application came to be dismissed by

the Trial Court for default, aggrieved against which, the

petitioner has come up with the present petition.

4. Learned counsel appearing for the petitioner would

submit

that

the

petitioner/accused

and

the

respondent/complainant are relatives and the petitioner had no

necessity to borrow a sum of Rs.7,55,000/- as alleged by the

respondent/complainant and she had met out the education

expenses of her daughter by selling out her property and since

she could not produce the documents in support of her case at

the time of her examination in chief, she had filed the

Application seeking to reopen her evidence and recall and

examine her further. He would further submit that the

petitioner/accused is facing an offence under Section 138 of

Negotiable Instrument Act 1988 wherein a reverse burden is cast

upon the accused as there is a statutory presumption in favour

of the complainant under Section 118 and 139 of the Negotiable

Instrument Act 1988 and thereby, in order to conduct a fair

trial, the petitioner should be allowed to mark those documents

to prove her case in defence. He would further submit that due

to pandemic restrictions, she could not pursue h