TaxTMI 
TaxTMI 
2021 (5) TMI 773
X X X X Extracts X X X X
X X X X Extracts X X X X
....Act"] 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. 2. Briefly stated, the facts leading to the filing of instant petition are that the respondent has filed a complaint under Section 138 of the Act against the petitioner on the allegation that the petitioner had issued in his favour a cheque bearing No. 005922 dated 26.07.2019 for an amount of Rs. 26,00,000/- drawn on petitioner's account maintained with Ellaquai Dehati Bank, Branch Bhaderwah. The respondent deposited the said cheque for encashment in the bank on 26.07.2019 but the same was returned with t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....acceptance ----- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer----that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements----that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps--- that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course----that the holder of a negotiable instrument is a holder in due course; Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful cu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. 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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gous to Section 173(4) which provides that in cases instituted upon police report as distinguished from 'complaint' the investigating officer shall be under an obligation to supply, before the commencement of the enquiry, to the accused not only the list of persons proposed to be examined by the prosecution but also copies of their statements recorded 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, ....