Sri Murugan Agencies vs M/s Khaitan and Company

V. Bakthavatsalu, J.—The accused has filed this revision against the order passed by the learned First Additional Sessions Judge-cum-Chief

Judicial Magistrate, Coimbatore in Crl. M.P. No.644 of 1996 dated 9.8.1996.

The respondent/complainant filed a complaint against the revision petitioner u/s 138, Negotiable Instruments Act. The trial Court after examined

P.Ws. 1 and 2 posted the case for examination of the accused u/s 313, Crl. P.C. and after examining the accused, the case was posted to

7.8.1996 for examination of defence witnesses and at that stage, the accused filed the present application to summon account books relating to

M/s. Murugan Agencies for the period from 1990 to the date of Petition.

The respondent/complainant filed a counter stating that the above account books were not necessary, since the accused has confirmed the

balance amount by writing a letter and that it is admitted fact that the accused was having transaction with the petitioner for the purchase of goods

and that therefore there is no necessity to summon the accounts.

The learned trial Judge dismissed the above application. Aggrieved against the said order, the accused has preferred this revision.

It is contended by the revision petitioner in this petition that the trial Court failed to note the principles of law as stated u/s 139, Negotiable

Instruments Act and that the trial Court has not given any valid reasons for dismissing the petition. The learned Counsel for the revision petitioner

contended that the accused as to rebut the presumption stated in Section 139, Negotiable Instruments Act, and that therefore, the request of the

petitioner could have been properly considered by the trial Court.

The point for determination is whether the order of the trial Court in dismissing the petition is sustainable in law?

The accused/revision petitioner filed an application to examine the witnesses and summon the account books only at the defence stage. The

revision petitioner wants to prove that he was not liable to pay the amount. u/s 139 Negotiable Instruments Act, the Court has to presume that the

holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge in whole, or in part, of any debt or other

liability. It is thus seen that it is for the accused to rebut the presumption by placing the circumstances under which the cheque was issued. The

accused has got right to prove his case by examining witnesses. It is open to the accused to rebut the presumption by calling and marking the

accounts in possession of the respondent''s company. Therefore, it cannot be contended that the accused has filed this application only to prolong

the case.

Admittedly, the respondent/complainant is in possession of the accounts. The case of the complainant would not be affected in any way if the

accounts are produced. When the accused has got right to prove his case by filing application to sent for the documents, the said right could not be

negatived by the trial Court by holding that the petitioner has not made out a case for summoning documents u/s 91, Crl. P.C. Section 311 Cr.

P.C. contemplates that the Court can summon any person as a witness or examine any person at any stage of the proceedings. The accused would

be in a position to examine the witness only if the documents asked for in the petition are produced. Further, it is to be noted that the accused has

filed the petition only during his examination u/s 313, Cr. P.C. and as such it cannot be said that the application is belated. The trial Court failed to

give, any importance to the right of the accused to rebut the presumption raised u/s 139, Negotiable Instruments Act. In the above circumstances,

the view taken by the trial Court cannot be said to be sustainable in law.

In the result, the Criminal Revision Petition is allowed. The order of trial Court is set aside. The Petition in Crl. M.P. No.644 of 1996 is allowed.

The trial Court is directed to permit the accused to examine the witnesses and summon the documents and to proceed with the case according to

law. The trial Court is directed to dispose of the case within two months from the date of receipt of the records