Observing that the right of the accused to have his witnesses examined or to have documents produced on his behalf cannot be denied, the Madras High Court (Madurai Bench) has allowed a petition and permitted the revision petitioner to adduce defence witnesses, which was earlier denied by the Kulithurai Judicial Magistrate Court.
The case is that on August 6, 2004, one T Hentry, the petitioner/accused, borrowed `2 lakh from one P Natarajan (complainant) to discharge a debt and on the same day, the petitioner issued a cheque dated December 6, 2004 for a sum of `2 lakh drawn on State Bank of India, Karungal Branch.
The cheque was presented on January 6, 2005 for collection in Tamil Nadu Merchantile Bank at Pallihadi and the same was dishonoured on the ground of insufficient funds.. Thereafter, on February 1, 2005, Natarajan issued a statutory notice to which the petitioner sent a reply disputing all the averments stated in the notice.
The complainant had himself examined as a prosecution witness in the lower court. Thereafter, the petitioner wanted to have defence witnesses examined and submitted a list of defence witnesses and filed a petition under Section 254(2) CrPC praying the court to issue summons to those witnesses.
The said petition was opposed by the complainant and was dismissed by the Kulithurai Magistrate on the ground that the petition was filed by the accused only to drag on the proceedings and since the case is pending for arguments it was not open to the accused to file a petition under Section 254(2) CrPC to examine the witnesses stated in the witness schedule.
Aggrieved by this the petitioner approached the High Court here. The petitioner submitted that as per the complainant’s statement, he borrowed the amount at the complainant’s residence but the fact is that he was in a remote village in Nellore in Andhra Pradesh for his treatment.
To rebut the evidence produced by the complainant, the witnesses cited by him in the witness schedule have to be necessarily examined. The petitioner pointed out that the witnesses cited in the list are necessary to prove that he was in Nellore taking treatment from a private medical practitioner.
On the other hand, the counsel for the respondent pointed out that attempt of the petitioner is only to protract the proceedings and that witnesses list are not concerned with the case.