ANIL KUMAR SINGH Vs. JAGDISH PANDEY

JUDGEMENT

(1.) These three applications under Section 482 Cr.P.C. have been filed by the two accused persons and the accused Company, challenging the order of cognizance dated 19.1.2012, passed by the learned S.D.J.M., Koraput, in 1.C.C.No.68 of 2011, taking cognizance of the offence under Section 138 of Negotiable Instruments Act ('N.I.Act.' for short).

(2.) The brief facts of the case is that the complainant-opposite party filed a complaint before the learned S.D.J.M., Koraput, under Section 138 N.I.Act., which was registered as 1.C.C.No.68 of 2011, alleging therein that the complainant and the accused persons (petitioners) are known to each other and the complainant and accused no.1 (petitioner in CRLMC No.3091 of 2012), along with two other friends had started a Company (petitioner in CRLMC No.3095 of 2012), in which, all four of them had equal shares. The accused persons were in total control and charge of the business of the Company and were operating the bank accounts of the said Company. It was alleged that the accused Anil Kumar Singh (petitioner in CRLMC no.3091 of 2012), as the Managing Director of the accused Company had issued a cheque bearing no.670019, dated 05.11.2011, for Rs.1,35,00,000/-(Rupees One crore thirty five lakhs), drawn on ICICI Bank, Gaurav Complex Transport Nagar, Korba, Chattisgarh, in favour of the complainant towards discharge of their debt. It was alleged that the complainant presented the said cheque to his bank at Semiliguda on 11.11.2011 for collection of the cheque amount. It was further alleged that to his surprise, his bank dishonoured the cheque due to insufficient funds in the account of the accused persons and returned the cheque along with memo dated 12.11.2011. It was alleged by the complainant that he got a demand notice issued to the accused persons through his advocate, in their address by registered post with A.D. on 14.11.2011, calling upon the accused persons to pay the cheque amount within fifteen days of receipt of the notice. It was the case of the complainant that though notices were sent in the correct address of the accused persons, the same were returned by the postal authorities with the endorsement that inspite of repeated visit to their office, the addressees were not available to receive the same. On the allegation that the accused persons who were in charge of and responsible to the Company for conduct of the business of the Company have avoided to receive the notice and have failed to pay the amount covered under the cheque, the complainant filed the complaint under Section 138 N.I.Act.

(3.) The case of the accused persons is that as no list of witnesses were filed along with complaint, no process could have been issued against the accused persons in violation of Section 204(2) Cr.P.C. It is submitted that as the said provision is mandatory in nature and the complainant having not furnished the list of witnesses, the issue of process against the accused persons is improper and illegal. In this regard, learned counsel for the accused persons has relied upon a decision of the Bombay High Court in Bhiku Yeshwant Dhangat and others, 2001 CrLJ 295, wherein the Hon'ble Court had held that taking cognizance of the complaint without there being any disclosure as to the witnesses whom the complainant would be examining is improper.