9911796707
TMI Blog2021 (5) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... sence 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. - CRM (M) No. 386/2020 and Crl. M. No. 1448/2020 - - - Dated:- 17-5-2021 - Sanjeev Kumar, J. For the Appellant : Pankaj Dubey, Advocate For the Respondents : Ankush Manhas, Advocate JUDGMENT Sanjeev Kumar, J. 1. By invoking inherent powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble debt or liability; and ii) That the complaint does not contain the list of witnesses. It is, however, not the case of the petitioner that the complaint otherwise does not disclose commission of 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 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. 6. In view of the provision of Section 139 of the Act, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er liability. 15. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 the NI Act is concerned, apparent it is that the accused-appellant could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of ₹ 3 lakhs each. The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The Trial Court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption. 8. Equally untenable is the argument of the learned counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded 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 the Code no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, or judgment or other proceedings before or during the trial or in any inquiry or other proceedings under the Code unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. In our opinion, the omission to file a list of witnesses along with the complaint should not have a more far reaching effect than the omission to carry out the provisions of Section 173(4). In every such case t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
