9911796707
TMI Blog2021 (5) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, whereby the Trial Court, after recording preliminary statement of the complainant and his witnesses, has issued process to secure presence of the petitioner for facing the trial. 2. Briefly stated, the facts leading to the filing of instant petition are that the respondent has filed a complaint under Section 138 of the Act against the petitioner on the allegation that the petitioner had issued in his favour a cheque bearing No. 005922 dated 26.07.2019 for an amount of Rs. 26,00,000/- drawn on petitioner's account maintained with Ellaquai Dehati Bank, Branch Bhaderwah. The respondent deposited the said cheque for encashment in the bank on 26.07.2019 but the same was returned with the memo that account of the petitioner did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 138 of the Act and, therefore, should not have been entertained by the Trial Court. 4. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned order of issuance of process to the petitioner does not suffer from any illegality or infirmity as would call for any interference by this Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C.. 5. It true that in the complaint the respondent has not disclosed the legally enforceable debt or liability in discharge whereof he has received the cheque from the petitioner. That, however, cannot vitiate the complaint for the simple reason that under Section 139 of the Act, there is presumption that holder of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and before its maturity; (d) as to time of transfer----that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements----that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps--- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course----that the holder of a negotiable instrument is a holder in due course; Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of the learned counsel for the petitioner that the complaint in the absence of list of witnesses submitted alongwith the complaint, is not maintainable. It is true that under Section 204 of the Code of Criminal Procedure, the Court shall not issue summon or warrant against the accused unless list of prosecution witnesses is filed. However, the defect of not supplying the list of prosecution witnesses is only an irregularity and the same would not vitiate the proceedings unless failure of justice has in fact been occasioned thereby. No prejudice has been pleaded by the petitioner in this petition. 9. In the view I have taken, I am fortified by a Full Bench judgment of this Court rendered in the case of Abdullah Bhat v. Ghulam Mohd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an obligation to supply, before the commencement of the enquiry, to the accused not only the list of persons proposed to be examined by the prosecution but also copies of their statements recorded under Section 161 as also copies of other documents or relevant extract therefrom which the prosecution proposes to rely upon. The trend of the decisions of the Supreme Court as reflected in and is that non-supply of such copies is not a matter affecting the jurisdiction of the court but it may vitiate the trial depending on whether or not prejudice was caused to the accused. In this, the court relied upon the provisions of Section 537 of the Code of Criminal Procedure which provide amongst other things that subject to the provisions contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subsequent procedure. On the other hand we would say that the breach of the provisions of Section 204(1-A) is not a matter going to the root of the jurisdiction but only a curable irregularity under Section 537 Cr.P.C. in which prejudice should be the balancing factor." 10. In the instant case, the petitioner is yet to cause appearance in the case and before the respondent embarks upon recording of his evidence he can very well file the list of witnesses and cure the defect. 11. In that view of the matter, the defect of not supplying the list of prosecution witnesses before issuance of process is curable, as Section 465 Cr.P.C. would come to the rescue of the respondent. The Court can very well permit the respondent to submit the list ..... X X X X Extracts X X X X X X X X Extracts X X X X
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