Accused May Examine Complainant As A Witness To Disprove His Case In Proceedings U/S 138 NI Act: Madras High Court

While setting aside the order of a lower court, the Madras High Court recently allowed an accused under Section 138 of the Negotiable Instruments Act to examine complainant's side of witnesses. Justice G.K Ilanthiraiyan sitting at Madurai observed,

"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."

The observation was made in a criminal revision petition filed by SMD Mohamed Abdul Khader, the accused, seeking to set aside the order of the Judicial Magistrate, Ramanathapuram wherein his petition filed under Section 243 of Cr.P.C to issue witness summons to the witnesses enumerated in the list of witnesses was dismissed.

The respondent (complainant) alleged that the petitioner had borrowed a sum of Rs. 8,00,000 and had issued a cheque for repayment. On presentation, this cheque was returned for the reason that "account closed". After causing legal notice as contemplated under Section 138 of the Negotiable Instruments Act, the complaint was filed and taken on the file of Judicial Magistrate, Ramanathapuram.

After the evidence of the respondent, the petitioner made a statement under Section 313 of CrPC and also stated that he had evidence on his side. On the magistrate's direction, a petition was filed to summon a list of witnesses. On rejection of this petition, the present revision petition was filed.

The respondent contended that the list of witnesses called for by the petitioner was not connected with the case in any manner. The Auditor, sought to be called for was in no way connected to the income of the accused. The District collector and Tahsildar are also not required to be examined since the document relied upon by the petitioner are private documents. Further, the petitioner sought to summon the de-facto complainant and there is absolutely no provision to examine the de facto complainant on the side of the defence. Thus, the respondent claimed that the petition was filed only to drag the proceedings and nothing else.

The petitioner on the other hand contended that belongs to an affluent family, there was no necessity to borrow any money from the respondent. Moreover, the respondent had no source of money to lend such a huge amount. Therefore, to rebut the evidence of the respondent, the petitioner necessarily has to examine the witnesses to disprove the case of the respondent.

The court relied on the decision of the Supreme Court in Tedhi Singh v. Narayan Dass Mahant (2022) in which the court had held that when the accused takes specific stand that the complainant had no source of income to lend such a huge amount, the accused can very well prove the same by cross-examination, witnesses and materials.

"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. "

The court had also stated that ultimately it is the duty of the courts to consider and appreciate the evidence in totality and then come to a conclusion whether the accused has proved that the case of the complainant is in peril for the reason that the accused has established a probable defence.

Considering the above view, the court deemed it fit and proper to allow the petitioner to examine his side of the witnesses.

Case Title: S.M.D Mohamed Abdul Khader v. Muniswari

Case No: Crl. R.C (MD) No. 954 of 2021

Citation: 2022 LiveLaw (Mad) 175

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