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2022 DIGILAW 1597 (GUJ)

NAGRAJ INFRACON PVT. LTD. v. SHIVAM PETROLEUM

2022-11-16

ILESH J.VORA

body2022
JUDGMENT : ILESH J. VORA, J. 1. Heard learned counsel Mr. V.M. Parikh on behalf of the applicant. 2. By way of this application under Articles 226 and 227 of the Constitution of India, the applicant, seeks to challenge the order of cognizance dated 03.09.2021, passed by the learned Judicial Magistrate First Class, Mangrole, District Surat in CC No. 3393 of 2021, taking cognizance of the offence under Section 138 of the Negotiable Instrument Act (N.I. Act for short). 3. The case of the applicant accused is that, as no list of witnesses were filed along with the complaint, no process could have been issued against him in violation of Section 204(2) of Cr.P.C. Mr. Parikh, learned counsel would submit that no summons shall be issued against the applicant accused under Section 204(1) until a list of prosecution witnesses has been filed. He would further submits that the said provision is mandatory in nature and complainant having not furnished the list of witnesses, the issue of process against the applicant accused is improper and illegal. He would further submit that in the complaint itself, there is no disclosure as to the witnesses whom the complainant would be examining is also improper and illegal and therefore, the order of issuance of summons passed below Exh.1 is required to be quashed and set aside. 4. Before adverting to the issue raised by the counsel of the applicant, it is necessary to refer the statutory provision, Section 204 which, reads as under: “Section 204: Issue of process: (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be: (a) A summons - case, he shall issue his summons for the attendance of the accused. (b) a warrant - case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.” 5. In the facts of the present case, the applicant accused is facing the trial under the provisions of the N.I. Act. It is pertinent to note that copy of the complaint lodged before the Court is not produced before this Court for its further perusal. It is not pleaded by the applicant accused that, in the complaint, either name of the complainant or any other person as a witness have not been disclosed. The accused raised the contention that, there is no compliance of the provisions of Section 204(2) of the Cr.P.C. regarding furnishing of list of witnesses before issuance of the process to the accused. The object of the provision is to give sufficient notice to the accused of the allegations which are made against him on which he sought to be prosecuted and also of the nature of the evidence which the prosecution proposes to adduce against the accused. It is necessary to rely and refer to the case of Premila Mahesh Shah vs. Employees State Insurance and Another, (2002) Cri. L.J. 2454 (Bombay High Court), wherein, it was held that non compliance of the provision of Section 204(2) of the Cr.P.C. does not affect the jurisdiction of the Magistrate, either to issue process or to try the case. The procedural laws are handmade of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. The procedural laws are handmade of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. Therefore, even if it was to be held that the provisions of Section 204(2) are mandatory, that, by itself, would not vitiate the issue of process or the jurisdiction of the Court and where the matter is at the initial stage, directions can be given to furnish the copy of the list witnesses, if any, before the proceedings actually commenced. 6. On the case on hand, the trial is yet to commence and therefore, the applicant accused failed to show that what kind of prejudice caused to him by non-compliance of the provision of Section 204(2) of the Cr.P.C. As observed above, the applicant accused has not filed the copy of the complaint. Moreover, Section 145 of the NI Act, which is parimateria to Section 254(2) of Cr.P.C. also empowers the Magistrate to issue summons and examine any witness, on the application of the prosecution and/or complainant. The same is not confined only to the witnesses enlisted in the complaint or furnished by way of separate list. 7. For the reasons as aforesaid, no impropriety or illegality can be said to have been committed by the learned Magistrate in taking cognizance of the offence under Section 138 of N.I. Act, so as to warrant any interference. Thus, I find no merits in the application and consequently, the same is hereby dismissed.