CAUSE TITLE:
SMD Mohamed Abdul Khader vs Muniswari
DATE OF ORDER:
13 April 2022
JUDGE(S):
The Hon’ble Mr. Thiru. Justice G.K. Ilanthiraiyan
PARTIES:
Petitioner/Accused: S.M.D Mohamed Abdul Khader
Respondent/Complainant: Muniswari
SUBJECT
The Madras High Court allowed a criminal revision petition filed under Section 243 of the Code of Criminal Procedure by the accused to examine the complainant's side of witnesses under Section 138 of the Negotiable Instruments Act and set aside the order of a lower court.
IMPORTANT PROVISIONS
The Negotiable Instruments Act, 1881 [hereinafter as NI Act]
Section 138: Dishonour of cheque for insufficiency, etc., of funds in the account
When a person draws a cheque from an account maintained by him for payment to another person, and if the cheque is returned by the bank unpaid, due to the insufficient funds, such person shall be deemed to have committed an offence and shall be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque.
The Code of Criminal Procedure, 1973 [hereinafter as Cr.P.C]
Section 243: Evidence for defense
If the accused requests the Magistrate to issue any process for the attendance of any witness for examination or cross-examination, or the production of any document or other thing, the issue shall be such processed.
FACTS
- The petitioner had borrowed a sum of Rs.8,00,000/- from the respondent. To repay the loan, he issued a cheque of Rs.8,00,000/- The cheque was presented for collection. However, it was dishonoured citing the reason 'account was closed'.
- The respondent-complainant then filed a complaint against the petitioner-accused for the offence punishable under Section 138 of the NI Act.
- After completion of the evidence of the complainant, the accused made a statement stating that he also had evidence. However, the lower court directed the accused to file a petition to issue summons to the list of the witnesses. Accordingly, the accused filed a petition under Section 243 of Cr.P.C along with the list of witnesses, but it was dismissed by the trial Court. The accused then filed a criminal revision case in the Madras High Court.
QUESTION RAISED
Is there any legal provision under which the accused may examine the complainant as a witness to refute his case in proceedings under Section 138 NI Act?
ARGUMENT ADVANCED BY THE RESPONDENT
- The respondent filed a counter-affidavit and argued that the list of witnesses of the petitioner was irrelevant to the case.
- The Auditor was not connected with the income of the petitioner.
- The examination of the District Collector and Tahsildar was inessential as the document relied upon by the petitioner was private.
- Further, the petitioner summoned the complainant and there is 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 cause a delay in the justice process.
ARGUMENT ADVANCED BY THE RESPONDENT
- The petitioner contended that after the legal notice was issued to him, he sent a reply notice stating, he belongs to an affluent and respected family and is also a trustee in Mohamed Sathak Trust which runs 18 educational institutions in Tamil Nadu and that his monthly rental income exceeds many lakhs. Therefore, he had no need and crisis to borrow any money from anybody, including the respondent.
- He further submitted that the petitioner had a right to lead his defence evidence by examining witnesses and the respondent has no right to object to it.
- Further, it was revealed that the respondent is only a name lender and the main person behind the offence was some other person named SeyedJawwad. Therefore, he has to examine the person, who lend the loan to the respondent to lend a huge sum of Rs.8,00,000/-.
- It was also pointed that the respondent had no source of income, hence, she contested in a local body election in October 2011 and at the time of her submission of the nomination, she filed an affidavit listing her assets and liabilities. Further, the respondent had accounts in the State Bank of India and the Indian Bank, in which she had only a minimum balance in her account and to prove the same, he wanted to examine the Managers.
ANALYSIS BY THE COURT
- The accused was allowed rebuttal of the respondent’s evidence by cross-examination. In this case, the petitioner had taken a specific stand that the respondent had no source of income to lend a huge amount of Rs.8,00,000/- to him when the petitioner is a rich person and had no need to borrow any money from the respondent.
- The Hon’ble Supreme Court held that when the accused had taken a specific stand that the complainant had no stream of income to lend such a huge sum, the accused can prove the same by cross-examination, witnesses and materials. In Tedhi Singh Vs. Narayan Dass Mahant, it was held that under Section 138 of the NI Act, the complainant doesn’t need to prove his financial capacity to lend a loan. However, the accused has a right to prove that the complainant did not have the financial capacity.
- Therefore, the accused’s case is justifiable, by examining the witnesses and producing documents. It is also open to him to establish the same by pointing to the materials produced by the complainant. The accused can also, cross-examine the witnesses of the complainant.
CONCLUSION
- The Court concluded that the petitioner can examine his side witnesses to disprove the case of the respondent.
- Accordingly, the order passed by the learned Judicial Magistrate, Ramanathapuram was set aside and this Criminal Revision Case was allowed.
Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE
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