JUDGMENT:- Heard Shri. Vahidulla, the learned Counsel on behalf of the petitioner/ accused and Shri. N. N. Sardessai, the learned Counsel on behalf of the respondent/ Complainant.

2. The Complainant has prosecuted the accused under Section 138 of the Negotiable Instruments Act, 1881, for bouncing of three cheques in the sum of Rs.7,20,000/-. The accused has challenged two Orders of the learned J.M.F.C. in the said case. The first Order dated 16-1-2001, issuing process against the accused and the other dated 16-12-2004, permitting the Complainant to examine a witness, namely, the Bank Manager, a witness who was not cited by the Complainant, earlier. In fact, the Complaint was not accompanied by a list of witnesses as required under sub-section (2) of Section 204 of the Code of Criminal Procedure, 1973, (Code, for short).

3. Rule was issued on 10-8-2005 and, therefore, this petition deserves to be disposed of on merits though it is otherwise submitted on behalf of the Complainant, that revisional remedy was available to the accused against the said Orders.

4. As far as the first Order dated 1601-2001 is concerned, I am not inclined to exercise extraordinary jurisdiction under Section 482 of the Code to allow the accused to challenge the same, as the accused has approached this Court belatedly after more than four years, four months and that too after having unsuccessfully challenged the said Order in revision before the Court of Sessions. Whether in the said revision the ground of sub-section (2) of Section 204 of the Code was taken or not would be immaterial since it was expected on the part of the accused to have taken all grounds available to him, when he challenged the said Order dated 16-01-2001 issuing process against him.

5. As far as the second Order dated 16-12-2004 is concerned, the learned J.M.F.C. has permitted the Complainant to examine one witness by name Sharad Samant, whose name was earlier not cited by the Complainant along with the complaint. The learned J.M.F.C. has permitted the Complainant to examine the said witness under Section 311 of the Code and it is conceded on behalf of the Complainant that leave to examine the said witness could not have been granted under Section 311 of the Code but under Section 254 of the Code. Sub-sections(1) & (2) which are relevant reads as follows :

"(1) If the Magistrate does not convict the accused under Section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing".

6. Shri. Vahidulla on behalf of the accused has submitted that the Complainant had filed no list of witnesses and in support of the said submission, learned Advocate Shri. Vahidulla, has placed reliance on the case of Sanyogita Shivnath Nandedkar Vs. Suprahha Rajendra Junghare (2004 ALL MR (Cri) 2296).

6. On the other hand, Shri. Sardessai, the n learned Counsel on behalf of the respondents, g has submitted that filing of list of witnesses is n not fatal to the case of the Complainant and the Complainant could also file additional list and n examine more witnesses as contemplated under It sub-section (2) of Section 254 of the Code and n in support of the said submission, Shri. Sardessai has placed reliance on decisions of this Court in the case of Shashi Nair Vs. R.C. Mehta (1982(1) Bom.C.R. 358) and Vashu Gokaldas Kukreja Vs. Meena Vashu Kukreja & anr. (2004 Bom.C.R. (Cri) 734: [2004 ALL MR (Cri) 1719]).

7. In Sanyogita Shivnath Nandedkar Vs. Suprabha Rajendra Junghare (supra), the complaint was dismissed by the learned Sessions Judge, as it was not filed along with the list of witnesses. The Complainant having approached the High Court, the High Cou

Click Here to Read the rest of this document