S.M.D.Mohamed Abdul Khader Vs Muniswari (Madras High Court)
The Honourable Supreme Court of India held that when the accused had taken specific stand that the complainant had no source of income to lend such a huge sum, the accused can very well prove the same by cross-examination, witnesses and materials. In this regard, the Honourable Supreme Court of India recently in Crl.A.No.362 of 2022, dated 07.03.2022 (Tedhi Singh Vs. Narayan Dass Mahant) held that in the case under Section 138 of the Negotiable Instruments Act, the complainant need not show the first instance that he had capacity to lend the loan. The proceedings under Section 138 of the Negotiable Instruments Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the Courts were right in held on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent material namely by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then, come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.
In view of the above, the petitioner can very well examine his side witnesses to disprove the case of the respondent herein.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
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:-
