Mr. K.S. Juneja and Another vs Embassy of Uruguay in India and Another

J.D. Kapoor, J.—This is a petition against the order dated 22.5.2003 passed by the learned ASJ whereby the application of the petitioners for dropping the proceedings against them u/s 138 of the Negotiable Instruments Act (in short `Act'' ) on the ground that complainant did not enclose the list of witnesses and as such no process could be issued, was dismissed. Section 204(2) of the Code of Criminal Procedure provides that no summons or warrants shall be issued against the accused until a list of prosecution witnesses has ben filed.

Admittedly the list of witnesses was not filed by the complaint when the summons were issued by the Magistrate. However, subsequently the case was transferred to the learned ASJ for trial. The learned ASJ did not consider this ground sufficient to recall order of summoning or dropping the proceedings by placing reliance upon the decision in Devendra Kumar Jain and Another Vs. State (Delhi Administration) and Another, wherein a view was taken that unless a prejudice is shown to have been caused to the accused persons because of failure of the complainant to file the list of witnesses with the complaint, the proceedings shall not be vitiated.

There is no doubt that the proceedings u/s 138 of the Negotiable Instruments Act cannot be vitiated merely because of failure of the complainant to file list of witnesses along with complaint> Non compliance of a provision is mandatory till a list of witnesses is filed, order of summoning shall not be passed.

In the instant case, the learned ASJ did not consider it proper to drop the proceedings or recalling the orders of summoning in view of the fact that list of witnesses had been filed by the complainant. Since the Magistrate the taken cognizance on the basis of the evidence produced by the complainant, the irregularity on the procedural aspect stood cured by filing list of witnesses by the complainant. On the list of witnesses has not been filed the order of summoning could have been kept in abeyance as the petitioner has not challenged the legality of the said order. In the absence of list of witnesses neither the proceedings can be dropped nor are these vitiated. The irregularity having been cured by the complainant, the instant petition losses its viability and is hereby dismissed with liberty to the petitioner to challenge the merits of the summoning order.