Madras High Court
S.Manohar vs M.Velayutham on 3 February, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.2636 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2025
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.2636 of 2025
and Crl.M.P.No.1701 of 2025
S.Manohar ... Petitioner
Vs
M.Velayutham ... Respondent
PRAYER: Criminal Original Petition is filed under 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 to set aside the order dated 04.12.2024 made in
Crl.M.P.No.3934 of 2024 in S.T.C.No.985 of 2021 passed by the Learned XV
Court of Small Causes, Chennai.
For Petitioner : Mr.S.Sathish Rajan
ORDER
This petition has been filed to set aside the order dated 04.12.2024
made in Crl.M.P.No.3934 of 2024 in S.T.C.No.985 of 2021 passed by the
Learned XV Court of Small Causes, Chennai, thereby dismissing the
application filed by the petitioner under Section 91 Cr.P.C.
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2. Heard the learned counsel on either side and perused the materials
placed on record.
3. The petitioner is an accused in the complaint lodged by the
respondent in S.T.C.No.985 of 2021, on the file of the XV Court of Small
Causes, Chennai alleging that the petitioner borrowed huge sum and in order to
return the same, issued a cheque for a sum of Rs.20,00,000/- towards part
settlement of the loan borrowed by him. It was presented for collection and got
dishonoured. After issuance of statutory notice as contemplated under Section
138 of NI Act, filed complaint.
4. After examination of witnesses, the petitioner filed an application
under Section 91 Cr.P.C to produce the bank statement of the respondent, on
the ground that he had no financial source to lend such a huge amount as loan
to the petitioner. Further, he is working as a Manager in a Hotel and as such, he
had no source of such income to lend huge amount of loan to the petitioner.
5. The learned counsel for the petitioner relied upon the Judgment of
the Hon'ble Supreme Court of India reported in 2022 6 SCC 735 in the case of
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Tedhi Singh Vs Narayan Dass Mahant, in which the Hon'ble Supreme Court
of India held that the complainant need not show in the first instance that he
had the capacity to lend loan, since Section 138 of NI Act is not a civil dispute.
The complaint has been filed to punish the petitioner. When the complainant
gives his evidence, unless a 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. However, 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
materials. It is also open to him to establish the very same aspect by pointing to
the materials produced by himself.
6. A perusal of records revealed that the petitioner was also
examined as defence witness and however, he did not produce any material to
substantiate the said ground. That apart, the case is posted for arguments, after
closing evidence. Therefore, the Trial Court had rightly dismissed the petition
and this Court finds no infirmity or illegality in the order dated 04.12.2024
made in Crl.M.P.No.3934 of 2024 in S.T.C.No.985 of 2021 passed by the
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Learned XV Court of Small Causes, Chennai and this petition is devoid of
merits and is liable to be dismissed. The Trial Court is directed to dispose of the
complaint in S.T.C.No.985 of 2021, within a period of twelve weeks from the
date of receipt of a copy of this order.
7. Accordingly, this Criminal Original Petition is dismissed.
Consequently, connected Miscellaneous petition is closed.
03.02.2025
(3/4)
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
mn
https://www.mhc.tn.gov.in/judis
To
1. The XV Court of Small Causes, Chennai.
2. The Public Prosecutor,
High Court, Madras.
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G.K.ILANTHIRAIYAN. J,
mn
03.02.2025
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