Madhya Pradesh High Court
Rakesh Kumar Sharma vs Satpuda Narmada Kshetriya Gramin Bank ... on 24 August, 2015
MCRC. 11351/2004 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Cri. Case No. 11351/2014
Rakesh Kumar Sharma
Vs.
Satpuda Narmada Kshetriya
Gramin Bank
AND
Misc. Cri. Case No. 11354/2014
Rakesh Kumar Sharma
Vs.
Satpuda Narmada Kshetriya
Gramin Bank
AND
Misc. Cri. Case No. 11357/2014
Rakesh Kumar Sharma
Vs.
Satpuda Narmada Kshetriya
Gramin Bank
AND
Misc. Cri. Case No. 11359/2014
Rakesh Kumar Sharma
Vs.
Satpuda Narmada Kshetriya
Gramin Bank
AND
Misc. Cri. Case No. 11361/2014
Rakesh Kumar Sharma
Vs.
Satpuda Narmada Kshetriya
Gramin Bank
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Shri P.S.Bhadoriya, Advocate for the petitioner.
Shri S.K.Shrivastava, Advocate for the respondent.
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MCRC. 11351/2004 2
ORDER
(24/ 08/2015) This order will dispose of Misc.Cri.Cases No.11351/2014, 11354/2014, 11357/2014, 11359/2014 and 11361/2014. Since the matters are similar, on the request of the parties, matters were analogously heard and decided by this common order.
2. Facts are taken from Misc.Cri.Case No.11351/2014.
Respondent/complainant filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (for brevity, the "NI Act") against the present petitioner. It is stated that the petitioner is proprietor of a warehouse. Ramshankar Ojha took loan from the bank and present petitioner was only a guarantor. Ram Shankar Ojha did not repay the loan to the bank. The Branch Manager of the respondent-bank directed the present petitioner to deposit the amount being guarantor. The petitioner, in turn, deposited Cheque No.5912428 for Rs.7,19,600/-. It is the case of the complainant/respondent that the said cheque could not be honored because the requisite amount was not available in the account of the petitioner. The complainant after sending legal notice filed the instant complaint before the court below. The court below by order dated 10.5.2011 took cognizance of the complaint and called the petitioner by issuing a bailable warrant of Rs.5000/-.
3. Shri P.S.Bhadoriya, learned counsel for the petitioner, criticized this order and contended that the present petitioner is only a guarantor. No action under NI Act can be taken against the guarantor. The respondent should have taken action against the borrower. Secondly, it is urged that along with complaint the complainant has MCRC. 11351/2004 3 not filed the list of witnesses. Thus, he violated mandate of section 204(2) of the Code of Criminal Procedure (CrPC). In absence of filing the list, it was not open for the court below to issue bailable warrant. In support of his contentions, he relied on AIR 2014 SC 655 (Devendra Kishanlal Dagalia v. Dwarkesh Diamonds Pvt.Ltd.); (2004) 7 SCC 338 (Adalat Prasad vs. Rooplal Jindal and others) and judgment of this Court, reported in 2014(5) MPHT 71 (Asharam Bapu vs. Aman Singh Dangi and others). These judgments are relied upon to contend that this application is maintainable.
4. Per Contra, Shri S.K.Shrivastava, learned counsel for the respondent submits that the language employed in NI Act is clear and unambiguous. The guarantor is not exempted from any liability to pay the amount. He further submits that the list of documents was filed along with the complaint. The attention is drawn on para 4 of IA No.1467/2015. By placing reliance on certain judgments of High Courts, it is contended that even if said list of witnesses was not filed, it will not vitiate the proceedings. At best, a direction may be issued to supply the said documents.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties and perused the record.
7. The point whether action can be taken against a guarantor in proceedings under NI Act is no more res integra. In AIR 2002 SC 3014 (I.C.D.S.Ltd. vs. Beemna Shabeer and another), the Apex Court opined as under:-
"10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of MCRC. 11351/2004 4 another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment.
11. The issue as regards the co-extensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the Statute depicts the intent of the law- makers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act: 'Any cheque' and 'other liability' are the two key expressions which stands as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the Statute. Any contra interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus does not lend any assistance to the contentions raised by the respondents."
(Emphasis Supplied) This judgment made it clear that whenever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability, there cannot be any restriction or embargo in matter of application of provisions of section 138 of NI Act. In view of this judgment, the contention of Shri P.S. Bhadoriya that proceedings against the guarantor are not maintainable must fail.
8. The respondent, in rebuttal to the contention of the petitioner that no list of witnesses was filed, has filed the said list along with IA No.1467/2015. There is no reply to MCRC. 11351/2004 5 the said IA by the petitioner. However, it is seen that parties have taken a diametrically opposite stand on the factum of filing of said list before the court below. Therefore, this matter may be examined from another angle. Kerala High Court dealt with this aspect in 1982 Cri.L.J. 683 (Madhavan Nambiar and others vs. Govindan and another). Para 7 of the judgment reads as under:-
"The purpose of S.204 (2) is to convince the court that there are proper materials to support the case and to enable the accused to know in advance what are the materials that the complainant is likely to produce against him. If this purpose is served otherwise, the omission to file a list of witnesses will not vitiate the proceedings. At the most what can be stated is that the court may insist on a list of witnesses being filed and refuse to issue process before such a list is made available. Reference. may be made to the decision of the Supreme Court in Mowu v. Supdt. Special Jail, Nowgong, 1972 SCC (Cri.) 184, a case which arose Under S. 204 (1- A) of the Code of 1898. A similar contention was raised in that case regarding the non-production of the list of witnesses. The Supreme Court overruled the objections and observed:
It is true that Section 204 (1-A) requires that a Magistrate shall not issue a process until a list of the prosecution witnesses has been filed before1 him. This provision is intended to be a safeguard for an accused person so that he knows beforehand what evidence is likely to be produced against him. Before the Magistrate issued the warrant he had both the complaint and the first information report before him which presumably contained particulars of the various offences charged against the petitioner, and in this particular case, the manner and the circumstances in which he was arrested as also the persons who apprehended him, the materials, that is to say, the arms and ammunition, and various documents seized from him at the time of his arrest. The complaint and the first information report, therefore, would disclose the evidence which would be relied upon by the prosecution although a list of witnesses might not have been filed before the Magistrate. Section 204 has also been the subject matter of interpretation by this Court in Maniyani v. State of Kerala, 1979 Ker LT 183. It was held that mention in the complaint itself of the names of witnesses would be sufficient compliance of Section 204 (2) of the Code and that non- compliance of the provision does not MCRC. 11351/2004 6 automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in preiudice to the accused. In the light of the above decisions the contention that the complaint should not have been acted upon in view of the non- compliance of Section 204 (2) of the Code has no force."
9. In 1995 Cr.L.J.352 (F.A.Poncha vs. M.Meherjee), the Madras High Court opined as under:-
"19. Observations of T. U. Mehta, C.J. of Himachal Pradesh High Court, inKanhu Ram v. Durga Ram, (1980 Cri LJ 518), appear to be relevant in this context. Learned Judge stated, that even if filing of a list contemplated by sub-section (2) of Section 204 Cr.P.C. was considered to be mandatory, the provisions contained in Section 465 the Code may have to be taken into consideration, before declaring the issue of process as illegal. Therefore, order issuing process cannot be set aside, unless the Court found, that it had resulted in failure of justice. It was further held, that the order had not resulted in failure of justice, since the matter had not yet proceeded further and the complainant could be asked to furnish a list of witnesses, before evidence was recorded in the case, so that the accused, for whose protection, sub-section (2) of Section 204 enacted, could know the nature of evidence, which the complainant was likely to produce."
10. In (2002) 2 Maharashtra Law Journal 100 (Pramila Mahesh Shah vs. Employees State Insurance Corporation and another), the Nagpur Bench opined as under:-
"29. Coming to section 204 (2) of Criminal Procedure Code, I must say that the non-compliance of this provision does not affect the jurisdiction of the Magistrate either to issue process or to try the case. This view has been taken by the Apex Court in Noorkhan v. State of Rajasthan', Madhaorao Pandurang v. Yeshwant; Abdullah Bhat v. Ghulam Mohd. Wani', and Shashi Ndir v. R.C.Mehta (supra). The procedural laws are hand maid 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 list of witnesses, if any, before the proceedings actually commenced. The stage of the proceedings is relevant to determine the prejudice, if any, caused to the accused. In the case MCRC. 11351/2004 7 under consideration, the substantive proceedings had not yet started. Therefore, in the circumstances, directions to the complainant to supply copy of witnesses, if any, within a period of four weeks from the receipt of the copy of the order by the trial Court would be considered as sufficient compliance of section 204 (2)of Criminal Procedure Code, 1973."
11. In view of aforesaid legal position, it is clear that mechanically no interference is warranted by this Court even if the list of witnesses was not filed along with the complaint. The party complaining against must establish prejudice. In the present case, the petitioner could not establish any such prejudice. Even otherwise, it is apparent from the impugned order that the matter was at initial stage. In this factual backdrop, in my view, it will not be proper to set aside the portion of the impugned order, by which the court below has directed to issue warrant, more so, when the petitioner is unable to prove that such list was actually not filed. Resultantly, I am only inclined to hold that if such list of witnesses has not been provided to the present petitioner, it be provided to him forthwith. Thereafter, the court below may proceed with the matter in accordance with law.
12. For this reason, no interference is warranted in the impugned order/proceedings. Petitions fail and are hereby dismissed.
13. Registry is directed to keep true copy of the order in all the connected matters.
(Sujoy Paul)
(yog) Judge