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TMI Blog2021 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... icial Magistrate, Cheranmahadevi. 3.The petitioner was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act, upon a complaint instituted by the respondent. The main defence of the petitioner / accused during trial and questioning under Section 313(1) (b) of the Code of Criminal Procedure was that the cheque in question was not issued by the petitioner to the respondent / complainant and that there was no financial transaction between the petitioner and the respondent as claimed in the complaint and in the evidence of the complainant. 4.According to the petitioner / accused, the complaint was lodged at the behest of one usurious money lender K.R.P.Elango, who is arrayed as an accused in the final report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Banker with regard to closure of the petitioner's account during the relevant period is not necessary as due to march of law, it is settled that even if the cheque issued by the drawer happened to be dishonoured on the ground that "account closed", still a prosecution under Section 138 of Negotiable Instruments Act, is very much maintainable. Therefore, the examination of the Banker of the petitioner is not at all necessary for a just decision of the present appeal. 2)The statement of accounts of the respondent maintained with his Banker is also not necessary since, neither in the complaint nor the complainant while tendering evidence had claimed that money was lent by him to the petitioner by drawing money from the bank and on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake such evidence itself or it direct it to be taken by a Magistrate. c) The nature of evidence is not a matter to be decided by the Appellate Court and it is the accused, who knows how to prove his defence. 8.The specific contention of the learned counsel for the petitioner is that since he has to rebut the evidence adduced on the side of the complainant, he must be given an opportunity to putforth his contentions and therefore, prayed for setting aside the orders of the III Additional District and Sessions Judge, Tirunelveli, passed in Cr.M.P.Nos.7403 and 8657 of 2019 in C.A.No.125 of 2018. 9.The following are the list of documents and witnesses in Cr.M.P.No.7403 of 2019, in which the petitioner rely on : Documents By whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.A.No.125 of 2018, since even if the cheque issued by the petitioner happened to be dishonoured on the ground that "account closed", a prosecution under Section 138 of the Negotiable Instruments Act, is still maintainable. Similarly, summoning CD case diary file in Crime No.346 of 2010 of Perumalpuram Police Station would not be of any use to the present petitioner. Based on the complaint lodged by the present petitioner, one K.R.P.Elango, has been prosecuted and the mere contention of the present petitioner is that only at the behest of K.R.P.Elango, the respondent /complainant filed a complaint cannot be accepted, in the absence of sufficient proof. Moreover, this aspect was considered and rejected by the Trial Court vide his Judgment, d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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