TMI Blog2001 (11) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... rate took cognizance, recorded the sworn statements of the complainants, found sufficient ground to proceed, and accordingly directed issuing of summons for the offence under Section 138 of the N.I. Act. Sri Basavaraj Sabarad, learned Counsel for the petitioner-accused would urge two grounds in support of his plea seeking quashing of the proceeding. 3. The first ground is that, the petitioner-accused had no notice of the fact of dishonouring of the cheque allegedly issued by him, and that, there was no notice as contemplated under Clause (b) of the proviso to Section 138 of the N.I. Act. It is to be found that while Section 138 of the N.I. Act speaks of commission of an offence under the said provision where a cheque comes to be disho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondents-complainants, the said endorsement is no different from other endorsements that the Supreme Court was considering in the above said case of Hiralal. That being the position, it has to be taken as deemed service. Another decision of the Supreme Court in M.A. Sridhar v. Metallay N. Steel Corporation, however is pressed into service to urge that each case has to be decided on the facts of that particular case even with regard to this deemed service. In the said latter decision, the Supreme Court pointed out that, although in appropriate case, deemed service is to be accepted by the Court as indicated in the earlier decision of the Supreme Court in Hiralal case referred to earlier, it may also be noted that such presumption o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case on merits. 4, The next contention of Sri Basavaraj Sabarad, learned Counsel for the petitioner is that, there is violation of Section 204(2) of the Cr. P.C. I find that there is such a violation. Section 204(2) of the Cr. P.C. mandates that no summons or warrant shall be issued against the accused under Sub-section (1) of Section 204 until a list of prosecution witnesses had been filed. In this case there is no such list of witnesses nor is there any statement by the complainant that he is the only witness and he is not examining any other witnesses. In that view of the matter, there is no compliance with Section 204(2) of the Cr. P.C. In such a situation, a learned Single Judge of this Court Hon'ble Mr. Justice K.B. Nav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise, the field will be wide open for the prosecution to bring in any witness at any time, not only to improve its case from time to time, but, also to nullify the admissions given in the cross-examination of the prosecution witnesses. It is therefore that the list of witnesses is insisted upon at the very outset, and it is only in exceptional circumstances that any fresh witness can be examined in the circumstances contemplated under Section 311 of the Cr. P.C. It is therefore that the law laid down in Keshava Murtky's case, supra, has held the field for over a decade. This being the position, I am of the opinion that, following Keshava Murthy's decision, supra, wherein it is held that Section 204(2) of the Cr. P.C. demands absol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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