J.D. Kapoor, J.—This is a petition against the Order dated 22.5.2003 passed by the learned ASJ whereby the application of the petitioners for dropping the proceedings against them under Section 138 of the Negotiable Instruments Act (in short ‘Act’) on the ground that complainant did not enclose the list of witnesses and as such no process could be issued, was dismissed. Section 204(2) of the Code of Criminal Procedure provides that no summons or warrants shall be issued against the accused until a list of prosecution witnesses has been filed.

2. Admittedly the list of witnesses was not filed by the complainant when the summons were issued by the Magistrate. However, subsequently the case was transferred to the learned ASJ for trial. The learned ASJ did not consider this ground sufficient to recall Order of summoning or dropping the proceedings by placing reliance upon the decision in Devender Kumar Jain and another v. State,1 wherein a view was taken that unless a prejudice is shown to have been caused to the accused persons because of failure of the complainant to file the list of witnesses with the complaint, the proceedings shall not be vitiated.

3. There is no doubt that the pro

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