Snehal Upadhyay –
The Jammu and Kashmir High Court has ruled in the case of Narinder Singh vs Sharjeel Malik that a complaint under section 138 of the negotiable and instrument act will not be efficient due to failure by holder of the cheque in order to disclose or state their complaint that the cheaque was received for discharge of legally enforceable debt on the part of the drawer of the cheaque.
The judgement was given by Justice Sanjeev Kumar.
The Court 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.”
The Court called off the argument of the petitioner’s side on the remark that the complaint is not maintainable because the list of witnesses was not submitted along with the complaint to the Court.
On this issue the Court referred to section 204 of the code of criminal procedure and stated that the Court shall not issue summon or warrant against the accused unless it gets the list of prosecution witness.
The Court further observed,“However, the defect of not supplying the list of prosecution witnesses is only an irregularity unless failure of justice has in fact been occasioned thereby.”
While dismissing the petition the court held that not giving the list of witnesses before issuance of process is operable only because of section 465 of the code of civil procedure will come on as a protector of the respondent.