Defence witnesses in cheque dishonour cases may be summoned to test the complainant's loan capacity and rebut the prosecution case.

In a prosecution under Section 138 of the Negotiable Instruments Act, an accused may rebut the complainant's case through cross-examination, defence evidence and relevant documents. Where the defence specifically contests the complainant's financial capacity to advance the alleged loan, the accused is entitled to seek summons for witnesses and records supporting that defence under Section 243 CrPC. The court must assess the totality of the evidence and permit a probable defence to be established through independent material or effective challenge to the complainant's evidence. The refusal to summon the proposed witnesses was therefore unsustainable.

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Issues: Whether an accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 is entitled to summon defence witnesses under Section 243 of the Code of Criminal Procedure, 1973 to rebut the complainant's case, including the complainant's financial capacity to advance the loan.

Analysis: The accused in a prosecution under Section 138 can rebut the complainant's case by cross-examining the complainant, leading defence evidence, and producing documents. Where a specific defence is raised that the complainant had no financial capacity to lend the alleged amount, the accused is entitled to seek summoning of witnesses and records relevant to that defence. The decision relies on the principle that the accused may establish a probable defence through independent material, the complainant's own evidence, or effective cross-examination, and that the court must consider the totality of the evidence.

Conclusion: The accused was entitled to examine the proposed witnesses, and the order refusing witness summons was unsustainable.

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