1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRI. APPLICATION NO. 3094 OF 2007 (NILESH VIJAY MALANI VS. TULSHIRAM BASTIRAM BAGAD. ) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ Shri Nitil Patil, Advocate for applicant. Shri Abhijit Parihar h/f. Shri N.R.Saboo, Adv.for Respondent. CORAM : R.C.CHAVAN, J. DATED : JANUARY 22, 2009. 1. This is an application under Section 482 of the Code of Criminal Procedure, whereby the applicant takes exception to judgment rendered by the learned Additional Sessions Judge, Amravati in exercise of revisional jurisdiction, whereby he rejected applicant's revision against rejection of applicant's application for dismissal of the complaint, copy whereof has not been filed in these proceedings. 2. It cannot be disputed that the respondent filed complaint of offence punishable under Section 138 of the Negotiable Instruments Act but did not annex list of witnesses to the complaint. After examining the complaint process came to be issued. The present applicant filed an application before the Court pointing out that the list of witnesses was not filed. The learned Magistrate passed an order on 07.12.2006 directing the complainant to mention names of the witnesses in the list or to state that he does not want to examine any 2 witnesses except himself. Thereafter the complainant filed list of witnesses by pursis dated 18.11.2007. In the meantime, on 27.02.2007 the learned Magistrate passed an order rejecting the application. As already pointed out, copy of the application is not filed on record. This order was challenged before the Sessions Court, which by its judgment dated 28th July, 2007 rejected the revision. 3. Heard learned counsel for the parties. 4. There can be no doubt that the Magistrate ought not to issue summons or warrant until list of prosecution witnesses is filed. However, the Magistrate did issue process. The applicant applied for having that order quashed. The Magistrate could not have done anything in the matter since he had no jurisdiction after having issued process to recall it, what ought to have been challenged before the Sessions Court is the order issuing process. Instead, the applicant chose to challenge before the Sessions Court order whereby the learned Magistrate refused to recall the order issuing process. Since the Magistrate could not have recalled his order, the Sessions Judge could not have done anything in respect of the order dated 27.02.2007, passed by the Magistrate. Viewed in this light, the order passed by the learned Additional Sessions Judge, rejecting revision application, is correct and does not call for any interference in exercise of inherent powers of this Court. 3 5. The learned counsel for the applicant placed reliance on a judgment of this Court in Sanyogita Shivnath Nandedkar Vs. Suprabha Rajendra Junghare, reported at 2004 ALL MR (Cri) 2296, where this Court was considering validity of dismissal of the complaint. Had the complaint, in this case, been dismissed, this Court would certainly not have interfered. 6. The learned counsel for the applicant also relies on a judgment of this Court in Bhiku Yeshwant Dhangat Vs. Baban Maruti Barate, reported at 2000 ALL MR (Cri.) 1437 where this Court held that if list of witnesses is not furnished, taking cognizance on such complaint was improper and, therefore, process can be quashed. 7. Now, in this case, the learned Magistrate did grant an opportunity to the complaint to file list of witnesses and the complainant has done so. Order directing issuance of process was not challenged. What was challenged is refusal by the Magistrate to recall order directing issuance of process and what is challenged in this Court is revisional order refusing to interfere with the said order of the Magistrate. 8. In view of this, case for invocation of inherent powers of this Court is not made out. The application is, therefore, rejected. JUDGE RR.