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TMI Blog2022 (4) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the Courts were right in held on those lines. The accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent material namely by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- and the same was presented for collection. However, it was dishonoured for the reason that 'account closed'. After causing legal notice as contemplated under Section 138 of the Negotiable Instruments Act, the petitioner filed the complaint and the same has been taken on the file of the learned Judicial Magistrate No.I, Ramanathapuram. After completion of the evidence of the complainant, the petitioner made a statement under Section 313 of Cr.P.C and specifically stated that the petitioner has evidence on his side. However, the Court below directed the petitioner to file appropriate petition to issue summons to the list of the witnesses. Accordingly, the petitioner filed a petition in Cr.M.P.No.7611 of 2019 on the file of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant for hire purchase of the two wheeler bearing Registration No.TN-65- R-7750 and also the copy of the statement of account of that loan account and depose about the same. 5. The District Collector, Ramanathapuram District, Ramanathapuram. To produce and depose about the affidavit submitted by the complainant regarding her assets and liabilities at the time of submission of her nomination in the last local body election held in October, 2011 for the post of President of R.S.Madai Panchayat. 6. The Manager, State Bank of India, Ramanathapuram Branch, Ramanathapuram. To produce and depose about the statement of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the petitioner vehemently contended that on receipt of the statutory notice, dated 18.03.2017 issued under Section 138 of the Negotiable Instruments Act, the petitioner had sent reply notice, dated 07.04.2017 and specifically stated that the petitioner belongs to a highly rich and reputed family and he is one of the trustees in Mohamed Sathak Trust which runs 18 educational institutions in Tamil Nadu and his monthly rental income itself exceeds many lakhs. Therefore, he had no necessity to borrow any money that too from the respondent herein. Further, revealed that the respondent is only a name lender and the main person behind this offence is one Seyed Jawwad. Further, the respondent had no source of money to lend such a huge am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the same, the petitioner wanted to examine those Managers. 5.Heard the learned Senior Counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record. 6.On a perusal of the materials available on record, for the offence under Section 138 of the Negotiable Instruments Act, the accused can rebut the evidence of the respondent by crossexamination, by examining witnesses on the side of the petitioner and produce materials and documents to rebut the evidence of the respondent to disprove the case of the respondent. In the case on hand, the petitioner had taken a specific stand that the respondent had no source of income to lend such a huge sum of ₹ 8,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then, come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. 8.In view of the above, the petitioner can very well examine his side witnesses to disprove the case of the respondent herein. Accordingly, the order passed in Crl.M.P.No.7611 of 2019 in S.T.C.No.8 of 2018, dated 23.11.2021 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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