The High Court of Jammu & Kashmir while exercising inherent powers vested in this Court in terms of Section 482 of the Code of Criminal Procedure, seeking quashment order dated 20.08.2019 passed by the learned Judicial Magistrate 1st Class, Bhaderwah in a complaint under Section 138 of Negotiable Instruments Act, 1881 filed by the respondent against the 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 held that defect of not supplying the list of prosecution witnesses before issuance of process is curable as it is only an irregularity which would not vitiate the proceedings.
The petitoner assailed the order on the ground that in the complaint the respondent has not averred that he has received the cheque in discharge of some legally enforceable debt and further that the complaint does not contain the list of witnesses.
The Court after hearing both sides observed 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.
The Single Bench comprised of Justice Sanjeev Kumar also observed that though 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.
The Bench also placed reliance upon the Full Bench judgment of this Court in case titled Abdullah Bhat v. Ghulam Mohd., 1972 CriLJ 277 wherein it was held in para 7
“7. For these reasons we are not inclined to agree with the view that the provisions of Section 204 (1-A) are mandatory in the sense that a process issued on a complaint before the filing of the list of witnesses would be invalid or invalidate the subsequent proceedings which is the view taken in and also by this Court in case, H. Ghulam Mohd. Barza v. Hazra Begum decided on 31-10-1969, and also seems to be the view implied in the case. Nor are we prepared to simplify the matter as was done in where it was said that Section 204 (1-A) imposes a condition on the issue of summons against the accused and once a summons is issued it ceases to be of any relevance and does not govern the 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.”Abdullah Bhat vs Ghulam Mohd
The Court further observed that 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.
The Court while dimissing the petition held that 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.CRM(M) NO.387/2020
Adv. Pankaj Dubey appeared for the Petitoner and Adv. Irfan Khan appeared for the respondent.
- Rohitbhai Jivan Lal Patel v. State of Gujrat, (2019) 18 SCC 106
- Abdullah Bhat v. Ghulam Mohd (1972 CriLJ 277)