KANNAIYAN Vs. AMARAVATHI

JUDGEMENT

(1.) This criminal original petition has been filed under Section 482 of Cr.P.C., praying to call for the records relating to the order dated 26.02.2010 in Cr.R.P.No.30 of 2009 on the file of District and Sessions Court (EC Act Cases), Thanjavur, confirming the order of the I Additional District Munsif cum Judicial Magistrate, Kumbakonam dated 28.07.2009 in Cr.M.P.No.1095 of 2008 in S.T.C.No.163 of 2006 and quash the same.

(2.) It is averred in the petition that the petitioner, being an accused in a case under Section 138 of N.I.Act, filed a petition under Section 311 of Cr.P.C., to recall the witness viz., Amaravathi, who is alleged to have lent money to the petitioner. The Judicial Magistrate dismissed the said application. Against that, the petitioner preferred revision before the District and Sessions Court, (EC Act Cases), and the same was also dismissed by the District and Sessions Judge (EC Cases), Thanjavur, confirming the order of the I Additional District Munsif cum Judicial Magistrate, Kumbakonam. It is further stated that only the power agent, who preferred the complaint before the Court was examined as a witness and he is noway connected with the alleged transaction. The complainant, who actually involved in the transaction, is necessarily to be cross-examined by the petitioner to rebut the legal presumption as contemplated under Section 139 of N.I.Act. Therefore, the order of the District and Sessions Judge in Crl.R.P.No.30 of 2009 is to be quashed.

(3.) The learned counsel for the petitioner contends that Amaravathi, who is alleged to have involved in the transaction with the petitioner has to be examined by the petitioner so as to rebut the legal presumption under Section 139 of I.P.C. and the denial of such opportunity would grossly prejudice the rights of the petitioner and therefore, the order of the District and Sessions Judge is to be quashed.