IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.No.7090 of 2007 and M.P.No.1 of 2007 P.Shankar ...Petitioner/Accused -Vs- C.Suresh ...Respondent/Complainant Criminal Original Petition filed under Section 482 of Criminal Procedure Code to direct the learned Magistrate, Tambaram to proceed further in accordance with law in C.C.No.267 of 2005 after taking effective steps to bring defence witness as prayed in C.M.P.No.12567 of 2006 in C.C.No.267 of 2005 dated 07.08.2006 pending on the file of learned Judicial Magistrate, Tambaram. For Petitioner : Mr.S.Sairaman For Respondent : Mr.C.Ramkumar O R D E R The petitioner herein has moved this petition for a direction to the learned Magistrate, Tambaram to take effective steps to bring the defence witness before such Court. The petitioner is the accused in C.C.No.267 of 2005 on the file of such Court and is facing prosecution for offence under Section 138 of the Negotiable Instruments Act. 2.The contention of the petitioner before the lower Court was that he had nothing to do with the complainant in the case and that the cheque had been issued by him to one Thomas for the purchase of a Car. Informing such stand, the petitioner has sought to examine the said Thomas as a defence witness in C.M.P.No.12567 of 2006 before the lower Court. The petitioner had paid Rs.36,000/- as batta towards summoning the said Thomas who was in California, U.S.A. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner complains in the present petition that though he paid the heavy amount for defence batta, the lower Court did not take effective steps to issue process for appearance of the defence witness and that the lower Court proceeded further in the case without taking such action. 4.A report dated 09.04.2009 has been submitted to this Court by the lower Court which inter alia informs that the petitioner had filed a process memo on three occasions in the year 2006 but the witness summons issued was returned as unclaimed. The position was intimated to the petitioner and his counsel, who took no further steps and the batta amount paid in Court has been taken return of by the learned counsel for the petitioner after making the necessary endorsement. 5.In the circumstances above stated, it is seen that the lower Court had done that which is within its power towards having the defence witness before it. In the above circumstances, this Court is unable to accept the present petition and the same shall stand dismissed with the observation that the lower Court would consider whether the defence raised, in the facts ad circumstances of the case, may be sustainable and if so, the effect of non-examination of the witness sought to be examined by the defence. The lower Court is directed to dispose of the case within a period of two months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gm To 1.The Judicial Magistrate,Tambaram. 2.-do- Thro' The Chief Judicial Magistrate, Kancheepuram. +1cc to Mr.S.Sairaman, Advocate Sr 7143 +1cc to Mr.C.Ramkumar,Advocate SR 7357 MSM(CO) km/17.2. CRL.O.P.No.7090 of 2007 and M.P.No.1 of 2007 https://hcservices.ecourts.gov.in/hcservices/