2021 (5) TMI 773 - HC - Indian Laws

Dishonor of Cheque - presence of legally enforceable debt or liability or not - non-supply of list of prosecution witnesses before issuance of process - section 138 of Negotiable Instruments Act - HELD THAT - 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. Equally untenable is the argument 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. 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. Petition dismissed.

Summary

Issues:
1. Quashing of order passed by Trial Court under Section 138 of Negotiable Instruments Act, 1881.
2. Maintainability of complaint under Section 138 of the Act.
3. Absence of list of witnesses in the complaint.

Issue 1: Quashing of Trial Court Order:
The petitioner sought to quash the Trial Court's order dated 27.11.2019, which issued process against the petitioner in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The petitioner challenged the order on the grounds that the complaint did not mention the legally enforceable debt or liability discharged by the cheque and did not contain a list of witnesses. However, the High Court found no illegality in the Trial Court's order, citing Section 139 of the Act, which presumes that a cheque is received for the discharge of a debt unless proven otherwise. The Court referenced a Supreme Court judgment to support the presumption under Sections 118 and 139 of the Act.

Issue 2: Maintainability of Complaint under Section 138:
The petitioner contended that the complaint was not maintainable as the respondent did not specify the legally enforceable debt or liability discharged by the cheque. However, the High Court held that under Section 139 of the Act, there is a presumption that a cheque is received for the discharge of a debt unless proven otherwise. The Court emphasized that the absence of specific mention in the complaint regarding the debt did not render it non-maintainable. The Court referred to a Supreme Court judgment to reinforce the applicability of the presumption under Sections 118 and 139 of the Act.

Issue 3: Absence of List of Witnesses:
The petitioner argued that the complaint was not maintainable due to the absence of a list of witnesses as required under Section 204 of the Code of Criminal Procedure. The High Court acknowledged the procedural irregularity but deemed it curable, stating that the defect could be rectified by submitting the list of witnesses before further proceedings. The Court cited a Full Bench judgment of the High Court to support the view that the absence of the witness list was an irregularity that did not invalidate the proceedings unless it caused prejudice. The Court held that the defect could be cured under Section 465 of the Cr.P.C., allowing the respondent to submit the list of witnesses before advancing with the complaint.

In conclusion, the High Court dismissed the petition, finding no merit in the petitioner's contentions. The Court upheld the Trial Court's order, emphasizing the applicability of presumptions under the Negotiable Instruments Act and the curability of the procedural irregularity regarding the list of witnesses.