# M/s Shriram Balaji Traders & Anr v. State of U.P. & Anr

- **Citation:** (2022) 11 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-02
- **Case number:** Application U/S 482 No. 14869 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-shriram-balaji-traders-anr-v-state-of-u-p-anr-47828
- **Pages:** 8

## Headnote

(A) Criminal Law - Negotiable Instruments
Act, 1881- Sections 138 &139 - The Code
of criminal procedure, 1973 - Section 482
- Inherent power - complaint cannot be
thrown at the threshold even if it does not
make a specific averment with regard to
service of notice on the drawer on a given
date - when the facts have to be
established by way of evidence - Court
while exercising the powers under section
482 of Cr.P.C., cannot interfere with such
proceedings. (Para -15,17 )

Complaint
under
section
138
NI
Act
-
Summoning order - quashing of - Disputed
service of notice - cheque stolen - nothing on
record to show cheque stolen - disputed
questions of fact .

HELD:-Factum of disputed service of notice
requires adjudication on the basis of evidence,
which can only be done and appreciated by the
trial court. No grounds for quashing of
proceedings under section 138 of NI Act. - No
illegality or infirmity in summoning order.(Para
-16,17,18)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
account of enmity pending between the
parties proceeding pending against the
applicants cannot be quashed as enmity is
double edged weapon.

22. Therefore, from the discussion
made above, I find no merit in the
arguments advanced by learned counsel for
the applicants.

23.

Accordingly,
the
instant
application is dismissed.
----------
(2022) 11 ILRA 380
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 14869 of 2022

M/s Shriram Balaji Traders & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Durlabh Kumar Pandey, Sri Rajesh
Chandra Dwivedi, Sri C.L. Pandey (Sr.
Advocate)

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Negotiable Instruments
Act, 1881- Sections 138 &139 - The Code
of criminal procedure, 1973 - Section 482
- Inherent power - complaint cannot be
thrown at the threshold even if it does not
make a specific averment with regard to
service of notice on the drawer on a given
date - when the facts have to be
established by way of evidence - Court
while exercising the powers under section
482 of Cr.P.C., cannot interfere with such
proceedings. (Para -15,17 )

Complaint
under
section
138
NI
Act
-
Summoning order - quashing of - Disputed
service of notice - cheque stolen - nothing on
record to show cheque stolen - disputed
questions of fact .

HELD:-Factum of disputed service of notice
requires adjudication on the basis of evidence,
which can only be done and appreciated by the
trial court. No grounds for quashing of
proceedings under section 138 of NI Act. - No
illegality or infirmity in summoning order.(Para
-16,17,18)

Application u/s 482 Cr.P.C. dismissed. (E7)

List of Cases cited:-

1. C.C. Alavi Haji Vs Palapetty Muhammed &
anr., (2007) 6 SCC 555

2. Ajeet Seeds Ltd. Vs K. Gopala Krishnaiah,
2014 12 SCC 685

3.
Bharat
Barrel
&
Drum
Manufacturing
Company Vs Amin Chand Pyarelal, (1999) 3 SCC
35

4. Basalingappa Vs Mudibasappa ,(2019) 5 SCC
418

5. Ranjit Vs St. of U.P. & anr. , Application U/s
482 No. 47282 of 2019

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. C.L. Pandey, Senior
Advocate assisted by Mr. Durlabh Kumar
Pandey, learned counsel for the applicants
and Mr. Amit Singh Chauhan, learned AGA
for the State and perused the records.

2. The present application under
Section 482 Cr.P.C. has been filed to quash
the summoning order dated 31.03.2021 as
11 All. M/s Shriram Balaji Traders & Anr. Vs. State of U.P. & Anr.
381
well as the entire proceedings of Complaint
Case No.5442 of 2020 (Sanjit Mishra Vs.
M/s Shriram Balaji Traders), under Section
138 of Negotiable Instruments Act, 1881,
pending in the Court of the Additional Civil
Judge (J.D.)/ Judicial Magistrate, Jhansi.

3. Brief facts of the case are that the
opposite party no.2 filed a complaint under
Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the
Act') against the applicant with the
allegation that the applicant having good
relations
with
opposite
party
no.2,
borrowed an amount of Rs. 4 lacs from the
opposite party no.2 and to discharge his
liability gave a cheque bearing No.264555
of State Bank of India, Branch Mandi
Samiti, Jhansi of his firm M/s Shriram
Balaji Traders having its account No.MCA
32292826933
dated
28.02.2020.
The
aforesaid cheque was presented before the
District
Cooperative
Bank,
Branch
Manikchowk,
Jhansi
for
encashment,
however, the same was returned on
04.03.2020 without payment with a remark
"other reasons". Thereafter, the opposite
party no. 2 approached the applicant
informing about the return of the check
without payment and requested him to pay
the amount as taken by him, on which,
assurance was given by the applicant that
he would contact the bank, after which, the
opposite party no.2 may present the cheque
for encashment. On the aforesaid verbal
assurance, the cheque was presented for the
second time on 07.02.2020 before the
District
Cooperative
Bank,
Branck
Manikchowk,
Jhansi
for
encashment,
however, the same was returned on
09.03.2020 without payment. Thereafter,
on 18.03.2020, a legal notice was sent to
the
applicant
through
advocate
by
registered post. Thereafter, as there was
lockdown from 24.03.2020, therefore, the
opposite party no.2 could not receive the
information of postal details. After the
lockdown was over, on 29.05.2020, the
opposite party no.2 sent a letter to the
senior
postal
superintendent,
Jhansi
enquiring about the service of notice and he
was informed that the aforesaid notice has
been served at the address mentioned on
19.03.2020. Thereafter, after the notice
neither any amount was paid nor reply was
submitted by the applicant, therefore, the
present compliant has been filed on
18.06.2020. Subsequently, the learned
Magistrate after recording the statement
under Sections 200 and 202 Cr.P.C.
summoned the applicant vide order dated
31.03.2021, under Section 138 of the Act.

4. Learned counsel for the applicants
submits that the applicant no.2 had good
relations with the opposite party no.2 and
the opposite party no.2 was interested to
purchase a portion of residential house of
the mother of applicant no.2. In this regard,
a registered agreement for sale was entered
between the opposite party no.2 and mother
of applicant no.2 on 08.10.2013. A sale
deed was to be executed by the mother of
applicant no.2 in favour of opposite party
no.2 within a period of two years after
payment of the consideration as agreed. As
only Rs. 1,00,000/- was paid and rest of the
amount could not be paid, therefore, by
mutual understanding between the parties
another registered agreement was executed
between them on 07.10.2015. The opposite
party no.2 did not pay the amount as agreed
within the stipulated period, therefore, the
present case has been instituted with mala
fide intentions, in order to extract money
from the opposite party no.2.

5. Learned counsel for the applicants
further submits that as the opposite party
no.2 used to come at the applicants' place, a
382 INDIAN LAW REPORTS ALLAHABAD SERIES
signed cheque was stolen from his drawer
and the same has been used for filing the
present case under Section 138 of N.I. Act,
therefore,
no
proceedings
under
the
relevant section of the Act is made out
against the applicant. He further submits
that the complaint does not mention the
details as to how the opposite party no.2
managed Rs.4 lacs, to be given to the
applicant. He further submits that though,
the opposite party no. 2 has sent a notice
dated 18.03.2020, but the service of notice
has not been effected and, therefore, the
complaint which has been filed on
18.06.2020, is not maintainable as the time
period of 15 days cannot be calculated as to
when the notice has been given to opposite
party no. 2. Under the circumstances, precondition as contained under Section 138
N.I. Act has remained uncomplied with
and,
therefore
according
to
him,
proceedings are clearly not maintainable
under the Negotiable Instruments Act,
1881. He further submits that there is no
specific averment as to how the notice has
been served upon the applicants, however,
the summoning order has been passed in a
mechanical manner without mentioned the
mode/manner of service of notice. Hence,
the same is liable to be quashed.

6. On the other hand, Mr. Amit Singh
Chauhan, learned AGA for the State,
submitted that it is not necessary to
mention in the complaint that notice of
demand was served on the accused on any
given date. He further submits that once it
is mentioned in the complaint that notice
was dispatched under the registered cover,
on the address of the accused which has not
been stated to be incorrect, there would be
a presumption in law with regard to service
of notice. The summoning order passed by
the concerned Magistrate is legal and just
in the eyes of the law and at this stage, only
a prima facie case is to be seen and the
complaint
cannot
be
thrown
at
the
threshold.

7. So far as the other submission as
raised by learned counsel for the applicant
regarding stolen cheque, learned AGA
submits that if the cheque was stolen, the
applicant should have given information for
the same to the Bank and also lodged an
FIR regarding loss of the check. However,
there is nothing on record to show that the
cheque was stolen. Therefore, the learned
Magistrate concerned has not committed
any illegality in summoning the applicant.
On the cumulative strength of the aforesaid,
learned AGA for the State submits that the
present
application
is
liable
to
be
dismissed.

8. I have carefully considered the
submissions advanced by learned counsel
for the parties and have also gone through
the material available on record.

9. Before proceeding to consider the
respective submissions of learned counsel
for the parties, it is useful to extract the
provisions of Section 138 of the Act, which
is as under:-

"138. Dishonor of cheque for
insufficiency, etc., of funds in the accounts:-

Where any cheque drawn by a
person on an account maintained by him
with a banker for payment of any amount of
money to another person from out of that
account for the discharge, in whole or in
part, of any debt or other liability, is
returned by the bank unpaid, either because
of the amount of money standing to the
credit of that account is insufficient to
honor the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
11 All. M/s Shriram Balaji Traders & Anr. Vs. State of U.P. & Anr.
383
bank, such person shall be deemed to have
committed an offence and shall without
prejudice to any other provisions of this
Act, be punished with imprisonment for a
term which may extend to one year, or with
fine which may extend to twice the amount
of the cheque, or with both:

PROVIDED
that
nothing
contained in this section shall apply unless-

(a) the cheque has been presented
to the bank within a period of six months
from the date on which it is drawn or
within the period of its validity, whichever
is earlier.

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice, in
writing, to the drawer of the cheque, within
fifteen days of the receipt of information by
him from the bank regarding the return of
the cheque as unpaid, and

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course of
the cheque, within fifteen days of the
receipt of the said notice.

Explanation: For the purpose of
this section, "debt or other liability" means
a legally enforceable debt or other
liability."

10. The aforesaid section deals with a
cheque drawn by a person "for the
discharge, in whole or in part, of any debt
or other liability." The section does not say
that the cheque should have been drawn for
the discharge of any debt or other liability
of the drawer towards the payee. Thus in
complaint under Section 138 of N.I. Act,
the Court has to presume that the cheque
had been issued for a debt or liability. This
presumption is rebuttable. However, the
burden of proving that a cheque had not
been issued for a debt or liability is on the
accused. The applicant being holder of
cheque and the signature appended on the
cheque having not been denied by the
Bank, presumption shall be drawn that
cheque was issued for the discharge of any
debt or other liability. The presumption
under
Section
139
is
a
rebuttable
presumption. Before this Court refers to
various judgments of the Apex Court
considering Sections 118 and 139, it is
relevant to notice the general principles
pertaining to burden of proof on an accused
especially in a case where some statutory
presumption regarding guilt of the accused
has to be drawn.

11. A Three Judges' Bench of the
Hon'ble Apex Court in the case of C.C.
Alavi Haji Vs. Palapetty Muhammed and
Another, reported in (2007) 6 SCC 555,
has held as under:-

"14.Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the correct
address by registered post. In view of the
said presumption, when stating that a
notice has been sent by registered post to
the address of the drawer, it is unnecessary
to further aver in the complaint that in spite
of the return of the notice unserved, it is
deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice is
deemed to have been effected at the time at
which the letter would have been delivered
in the ordinary course of business. This
Court has already held that when a notice
is sent by registered post and is returned
with a postal endorsement refused or not
available in the house or house locked or
shop closed or addressee not in station, due
service has to be presumed. [Vide Jagdish
384 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh Vs. Natthu Singh,3 [AIR 1992 SC
1604]; State of M.P. Vs. Hiralal & Ors.,4
[(1996) 7 SCC 523] and V.Raja Kumari Vs.
P.Subbarama Naidu & Anr.,5 [(2004) 8
SCC 774]. It is, therefore, manifest that in
view of the presumption available under
Section 27 of the Act, it is not necessary to
aver in the complaint under Section 138 of
the Act that service of notice was evaded by
the accused or that the accused had a role
to play in the return of the notice unserved.

17.It is also to be borne in mind
that the requirement of giving of notice is a
clear departure from the rule of criminal
law, where there is no stipulation of giving
of a notice before filing a complaint. Any
drawer who claims that he did not receive
the notice sent by post, can, within 15 days
of receipt of summons from the court in
respect of the complaint under Section 138
of the Act, make payment of the cheque
amount and submit to the Court that he had
made payment within 15 days of receipt of
summons (by receiving a copy of complaint
with the summons) and, therefore, the
complaint is liable to be rejected. A person
who does not pay within 15 days of receipt
of the summons from the Court along with
the copy of the complaint under Section
138 of the Act, cannot obviously contend
that there was no proper service of notice
as required under Section 138, by ignoring
statutory presumption to the contrary under
Section 27 of the G.C. Act and Section 114
of the Evidence Act. In our view, any other
interpretation of the proviso would defeat
the very object of the legislation. As
observed in Bhaskaran case, if the "giving
of notice" in the context of Clause (b) of the
proviso was the same as the "receipt of
notice" a trickster cheque drawer would get
the premium to avoid receiving the notice
by adopting different strategies and escape
from legal consequences of Section 138 of
the Act."

12. It is not necessary to aver in the
complaint that in spite of the return of the
notice unserved, it is deemed to have been
served or that the addressee is deemed to
have knowledge of the notice. Unless and
until the contrary is proved by the
addressee, the service of notice is deemed
to have been effected at the time, at which
the letter would have been delivered in the
ordinary course of business. In the
judgment of the Apex Court in the case of
Ajeet Seeds Ltd. vs. K. Gopala Krishnaiah,
reported in 2014 12 SCC 685, the Apex
Court has held that absence of averments in
the complaint about service of notice upon
the accused is the matter of evidence. The
paragraph nos. 11 and 12 of the said
judgement are reproduced herein below:-

"10. It is thus clear that Section
114 of the Evidence Act enables the Court
to presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee. Section 27 of the GC Act gives
rise to a presumption that service of notice
has been effected when it is sent to the
correct address by registered post. It is not
necessary to aver in the complaint that in
spite of the return of the notice unserved, it
is deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice is
deemed to have been effected at the time at
which the letter would have been delivered
in the ordinary course of business.

11.
Applying
the
above
conclusions to the facts of this case, it must
be held that the High Court clearly erred in
quashing the complaint on the ground that
there was no recital in the complaint that
the notice under Section 138 of the NI Act
was served upon the accused. The High
Court also erred in quashing the complaint
11 All. M/s Shriram Balaji Traders & Anr. Vs. State of U.P. & Anr.
385
on the ground that there was no proof
either that the notice was served or it was
returned unserved/unclaimed. That is a
matter of evidence. We must mention that in
C.C. Alavi Haji, this Court did not deviate
from the view taken in Vinod Shivappa, but
reiterated the view expressed therein with
certain clarification. We have already
quoted the relevant paragraphs from Vinod
Shivappa where this Court has held that
service of notice is a matter of evidence
and proof and it would be premature at the
stage of issuance of process to move the
High Court for quashing of the proceeding
under Section 482 of the Cr.P.C. These
observations are squarely attracted to the
present case. The High Court's reliance on
an order passed by a two-Judge Bench in
Shakti Travel & Tours is misplaced. The
order in Shakti Travel & Tours does not
give any idea about the factual matrix of
that case. It does not advert to rival
submissions. It cannot be said therefore
that it lays down any law. In any case in
C.C. Alavi Haji, to which we have made a
reference, the three-Judge Bench has
conclusively decided the issue. In our
opinion, the judgment of the two-Judge
Bench in Shakti Travel & Tours does not
hold the field any more."

13. Further the Apex Court in
Bharat Barrel & Drum Manufacturing
Company Vs. Amin Chand Pyarelal,
reported in (1999) 3 SCC 35 had
considered Section 118(a) of the Act and
held
that
once
execution
of
the
promissory
note
is
admitted,
the
presumption under Section 118(a) would
arise
that
it
is
supported
by
a
consideration. Such a presumption is
rebuttable and defendant can prove the
non-existence of a consideration by
raising a probable defence. In paragraph
No.12 following has been laid down:-

"12.
Upon
consideration
of
various judgments as noted hereinabove,
the position of law which emerges is that
once execution of the promissory note is
admitted, the presumption under Section
118(a) would arise that it is supported by a
consideration. Such a presumption is
rebuttable. The defendant can prove the
non-existence of a consideration by raising
a probable defence. If the defendant is
proved to have discharged the initial onus
of proof showing that the existence of
consideration was improbable or doubtful
or the same was illegal, the onus would
shift to the plaintiff who will be obliged to
prove it as a matter of fact and upon its
failure to prove would disentitle him to the
grant of relief on the basis of the negotiable
instrument. The burden upon the defendant
of proving the non-existence of the
consideration can be either direct or by
bringing on record the preponderance of
probabilities
by
reference
to
the
circumstances upon which he relies. In
such an event, the plaintiff is entitled under
law to rely upon all the evidence led in the
case including that of the plaintiff as well.
In case, where the defendant fails to
discharge the initial onus of proof by
showing
the
non-existence
of
the
consideration,
the
plaintiff
would
invariably be held entitled to the benefit of
presumption arising under Section 118(a)
in his favour. The court may not insist upon
the defendant to disprove the existence of
consideration by leading direct evidence as
the existence of negative evidence is neither
possible nor contemplated and even if led,
is to be seen with a doubt. The bare denial
of the passing of the consideration
apparently does not appear to be any
defence. Something which is probable has
to be brought on record for getting the
benefit of shifting the onus of proving to the
plaintiff. To disprove the presumption, the
386 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant has to bring on record such facts
and circumstances upon consideration of
which the court may either believe that the
consideration did not exist or its non-
existence was so probable that a prudent
man would, under the circumstances of the
case, shall act upon the plea that it did not
exist......"

14. In its latest judgment, the Apex
Court in the case of Basalingappa Vs.
Mudibasappa reported in (2019) 5 SCC
418, specifically in paragraph nos. -23 and
24 has noticed as follows:-

"27. Section 139 of the Act is an
example of a reverse onus clause that has
been included in furtherance of the
legislative objective of improving the
credibility of negotiable instruments. While
Section 138 of the Act specifies a strong
criminal
remedy
in
relation
to
the
dishonour of cheques, the rebuttable
presumption under Section 139 is a device
to prevent undue delay in the course of
litigation. However, it must be remembered
that the offence made punishable by
Section 138 can be better described as a
regulatory offence since the bouncing of a
cheque is largely in the nature of a civil
wrong whose impact is usually confined to
the private parties involved in commercial
transactions. In such a scenario, the test of
proportionality
should
guide
the
construction and interpretation of reverse
onus clauses and the defendant-accused
cannot be expected to discharge an unduly
high standard of proof."

23. No evidence was led by the
accused. The defence taken in the reply to
the notice that cheque was stolen having
been rejected by the two courts below, we
do not see any basis for the High Court
coming to the conclusion that the accused
has been successful in creating doubt in
the mind of the Court with regard to the
existence of the debt or liability. How the
presumption under Section 139 can be
rebutted on the evidence of PW 1, himself
has not been explained by the High Court.

24. The above Kishan Rao case
was a case where this Court did not find
the defence raised by the accused
probable. The only defence raised was that
cheque was stolen having been rejected by
the trial court and no contrary opinion
having been expressed by the High Court,
this Court reversed the judgment of the
High Court restoring the conviction. The
respondent cannot take any benefit of the
said judgment, which was on its own
facts."

(Emphasis added)

15. The matter regarding stolen
cheque has already been dealt by this Court
in the case of Ranjit vs. State of U.P. and
another decided on 31.01.2020 passed in
Application U/s 482 No. 47282 of 2019.

16. In view of the settled legal
position, as noticed above, it is clear that
the complaint cannot be thrown at the
threshold even if it does not make a
specific averment with regard to service of
notice on the drawer on a given date. In the
complaint itself, it has been mentioned
about the letter of the senior postal
superintendent, Jhansi, which goes to show
that the notice has been served at the
address
mentioned
on
19.03.2020,
therefore, it cannot be said that the notice
has not been served. The factum of
disputed
service
of
notice
requires
adjudication on the basis of evidence and
the same can only be done and appreciated
by the trial court.

17. As regards the submission made by
learned counsel for the applicants regarding
the facts that the cheque was stolen, the
11 All. Moti Lal & Ors. Vs. State of U.P. & Anr.
387
Court is of the opinion that if the cheque
was stolen, the applicant should have given
information for the same to the Bank and
also lodged an FIR regarding loss of the
check. However, there is nothing on record
to show that the cheque was stolen and the
information regarding missing of cheque
was also not given to the bank. However,
after nearly one year, on 18.03.2022, when
opposite party no.2 came to know about the
said complaint under Section 138 of N.I.
Act, he sent a letter to the bank regarding
missing of check book, but neither the
details of check has been mentioned nor any
complaint has been made regarding the
same earlier. All the submissions made by
learned counsel for the applicant is disputed
questions of fact. Therefore, when the facts
have to be established by way of evidence,
this Court while exercising the powers under
section 482 of Cr.P.C., cannot interfere with
such proceedings. Hence, no grounds are
made out for quashing of the proceedings
under section 138 of the Negotiable
Instruments Act.

18. On the basis of discussions made
herein above, this Court finds that there is
no illegality or infirmity in the summoning
order dated 31.03.2021 passed by the
concerned court below. Therefore, no
interference is required at this stage.

19. In view of the aforesaid, the
application is, accordingly, dismissed.
----------
(2022) 11 ILRA 387
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 19772 of 2022
Moti Lal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ratnesh Kumar Jaiswal

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 498-A - Dowry Prohibition
Act,1961 - Section 3/4 - The Code of
Criminal Procedure, 1973 - Section 482 -
Inherent power, Section 204(2) - No
summons or warrant shall be issued
against the accused under sub-section (1)
until a list of the prosecution witnesses
has been filed - mere non-compliance of
the provisions of Section 204(2) Cr.P.C.
would not vitiate further proceedings
unless and until prejudice is caused or
likely to be caused by not following the
provisions. (Para -11,21)

Applicants summoned under Section 204(1)
Cr.P.C. - summons issued without filing list of
prosecution witnesses by opposite party no.2
(complainant) - trial of case at initial stage - till
date applicants could not appear before court -
pursuant to summoning order passed against
them - if list of prosecution witnesses would be
provided by opposite party no.2 (complainant) -
on their appearance before court - it cannot be
said, it would cause prejudice to them. (Para -
10,22 )

(C) Words and phrases - word 'may' or
'shall' - mere use of word "may" or "shall"
is not conclusive - it has to be decided
according to the object and scheme of the
Act and the contest and back ground
against
which
the
word
has
been
used.(Para - 15)

HELD:-By non filing the list of witnesses by
opposite party no.2 does not cause any
prejudice to the applicants. Therefore, on the
basis of non-compliance of Section 204 (2)
Cr.P.C. neither proceedings pending against the
applicants can be vitiated nor summoning order
can be quashed. (Para -23)