- In SMD Mohammad Abdul Khader vs Muniswari the Madras HC, while setting aside the order of the lower Court, has allowed the accused to examine the prosecution witnesses in proceedings under section 138 Negotiable Instruments Act.
- The Court observed that the accused has a right to prove that the complainant in a particular case did not have the capacity. He can do so by producing independent material witnesses and documents. He can also do so by pointing to the materials produced by the complainant himself.
- In the instant case, the respondent/complainant alleged that the petitioner/accused had borrowed a sum of Rs.8,00,000 and had issued a cheque for the repayment. Upon presentation, the cheque was returned for the reason that the account was closed. After the issuance of the legal notice as is contemplated by section 138 NI Act, the complaint was filed.
- After the evidence of the respondent/complainant, the petitioner/accused had given a statement under section 313 CrPC and stated that he had evidence to prove his innocence. He filed an application for the summoning of a list of witnesses. The same was rejected by the Court. Aggrieved, the petitioner/accused filed a revision petition in the HC.
- The respondent contended that the list of the witnesses called for by the petitioner was not connected with the case in any manner. The Auditor called for was not in any way connected to the income of the accused. Same was the case with the District Collector and the Tahsildar. Thus, the respondent claimed that the said application for summoning the witnesses under section 243 CrPC was filed only for the purposes of dragging the case.
- The petitioner/accused claimed that he came from an effluent background and that there was no reason for him to borrow any money from the respondent. He also contended that the respondent had no source of money to lend such a huge amount to him. Thus, to rebut his evidence, the petitioner necessarily had to examine the witnesses.
- The Hon’ble HC relied upon the decision of the Apex Court in Tedhi Singh vs Narayan Das Mahant (2022) in which the Court held that the accused had the right to demonstrate that the complainant did not have the capacity, and to that end he can cross-examine the witnesses and producing material evidence on record. He can achieve the same by pointing to the materials produced by the complainant himself.
- The Court also observed that ultimately it is the duty of the Courts to consider carefully and examine the totality of the evidence, and then come to a conclusion.
- Thus, allowing the revision petition of the petitioner/accused, the order of the lower Court was set aside and the petitioner was allowed to call witnesses in support of his case.
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