2021 (5) TMI 563 - HC - Indian Laws

Dishonor of Cheque - legally enforceable debt or not - rebuttal of presumption - section 138 of NI Act - HELD 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. - 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 cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability unless of course the contrary is proved. In view of the provision of Section 139 of the Act, it is not available to the petitioner to argue that in the absence of specific mention in the complaint that the cheque was received by the respondent in the discharge of any debt or other liability, 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. 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 - 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 of prosecution witnesses before proceeding further in the complaint. Petition dismissed.

Summary

Issues:
1. Quashing of order passed by Trial Court under Section 138 of Negotiable Instruments Act.
2. Maintainability of complaint without specific averment of legally enforceable debt or liability.
3. Requirement of list of witnesses in the complaint.

Issue 1: Quashing of Trial Court's Order
The petitioner sought to quash the Trial Court's order issuing process against them in a complaint under Section 138 of the Negotiable Instruments Act. The Trial Court had taken cognizance of the complaint, recorded preliminary statements, and found grounds to proceed further. The petitioner challenged the order on the grounds of maintainability of the complaint and absence of a list of witnesses. However, the High Court found no illegality or infirmity in the Trial Court's order, citing the provisions of Section 139 of the Act, which presume that the holder of a cheque received it for the discharge of a debt unless proven otherwise.

Issue 2: Maintainability of Complaint
The petitioner argued that the complaint was not maintainable as it did not specifically mention the legally enforceable debt or liability for which the cheque was issued. The High Court, relying on Section 139 of the Act, held that the absence of such specific mention does not vitiate the complaint. The Court referred to a Supreme Court judgment highlighting the presumption in favor of the holder of the cheque under Sections 118 and 139 of the Act, shifting the burden of proof to the accused to establish a defense against the presumption.

Issue 3: Requirement of List of Witnesses
The petitioner contended that the complaint was defective as it did not contain a list of witnesses, as required under Section 204 of the Code of Criminal Procedure. The High Court acknowledged the procedural irregularity but emphasized that the absence of the list of witnesses was an irregularity that could be cured. Referring to a Full Bench judgment, the Court explained that the purpose of the list of witnesses was to inform the accused and prevent manipulation of evidence. The Court held that the defect was curable, and the respondent could submit the list of witnesses before further proceedings.

In conclusion, the High Court dismissed the petition, finding no merit in the petitioner's arguments against the Trial Court's order. The Court upheld the legality of the Trial Court's decision under Section 138 of the Negotiable Instruments Act, emphasizing the presumption in favor of the holder of the cheque and the curability of the procedural irregularity regarding the list of witnesses.