KAMAL Vs. STATE

JUDGEMENT

(1.) IN presence of learned Counsel of both sides and with their consent the matter has been taken up for final hearing.

(2.) LEARNED Counsel for the revisionists has submitted that the notice, as required under the provisions of Negotiable Instruments Act, was not proper and hence no cause of action arose in this case. He has submitted that the cheque was deposited on 8. 9. 1993 and notice was issued on 27. 9. 1993, i. e. , after 15 days as provided in that act. In reply learned Advocate for respondent No. 3 has submitted that the cheque was presented thrice, i. e. , on 8. 9. 1993,13. 9. 1993 and 17. 9. 1993 and all the times cheque was dishonoured. According to him the notice should have been served within 15 days from the date of last presentation, i. e. , on 17. 9. 1993 and it was done properly. Learned Counsel for the revisionists has submitted that the respondent No. 3 was not entitled to present the cheque on more time than one. Both submission of the learned Counsel for the revisionists cannot be sustained. The drawee of the cheque is entitled to present the cheque as many times as possible within the prescribed period and if presented and dishonoured on each occasion of drawee in entitled to issue notice to launch prosecution under Section 138 of Negotiable Instruments Act within 15 days from the date of last presentation. In this respect I find that notice was quite in order.

(3.) LEARNED Counsel for the revisionists has been submitted that no statement of the witnesses except the complainant was taken under Section 200, Cr. P. C. while issuing process and no list of the witness has been mentioned in the petition of complaint. So the process issued by the learned Magistrate is barred under Section 204 (2), cr. P. C. Learned Counsel for the respondent No. 3 has challenged the version of other side by referring a decision in case of Abdullah Bhat v. Gulam Mohammad Wani, 1972 Cr. L. J. 277 (FB) wherein it has been decided that the omission to file a list of witnesses along with the complaint should not have a more far reaching effect. The guiding principle should be if any prejudice was caused to the accused. The object of section 204 (1) is not to introduce a requirement that goes to the root of Jurisdiction. Hon'ble Judges have also held that the purpose is to apprise the accused at the earliest opportunity of the person who are likely to give evidence against him and to sucttle any attempt on the part of the complainant subsequently to improve the state of evidence by made-up witness. This may give a valuable right to the accused but it is not certainly one which the law regards as fundamental or sacred.