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2008 DIGILAW 928 (PNJ)

V. K. Gupta v. Manjit Kaur

2008-04-28

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. The petitioner has challenged the order dated 28th March 2006 passed by the learned Sessions Judge, Patiala allowing the revision petition filed by the respondent herein. 2. Respondent Manjit Kaur filed a complaint under Section 138 of the Negotiable Instruments Act read with Section 406/420 of the Indian Penal Code, Para 8 of the said complaint reads as under: "That the said cheque was presented by the complainant from time to time but it was dishonoured with the remarks bearing "Insufficient Funds". However accused assured that he will arrange the funds and the cheque will be encashed so accordingly the said cheque was lastly presented by the complainant on 14.6.2003 which was dishonoured and returned uncashed with the memo dated 14.6.2003." 3. The said complaint was filed on 28th of August 2003 by taking the starting point of limitation to be 14th of June, 2003. Thus apparently the complaint was time barred and not maintainable. Even otherwise, the averments made in Para 8 showed that even prior to 4th June, 2003 the cheque had been dishonoured and, therefore, the complaint on the basis of dishonouring of the cheque second time was not within limitation. 4. On 9th October 2004, the respondent moved an application for making necessary correction with regard to date of presentation of the cheque with the Bank as well as memo of dishonour of cheque by the Banker of the accused. 5. It was pleaded in the said application that the respondent wanted to change the date of presentation of the cheque from 14th of June to 28th of June 2003. The complainant-respondent also sought to make an averment that the cheque was dishonoured and returned with memo lastly on 2nd July 2003 and not 14th June, 2003. She sought that the date be corrected to 2nd July, 2003. The application was contested. The learned trial Court rejected the said application by observing as under: "Learned counsel for the applicant/ complainant stated that the proposed amendments referred to by him in this application are typographical mistake, which the Court can correct by invoking its inherent powers. In this regard reliance placed upon Yankay Drugs and Pharmaceuticals Ltd v. M/s. City Bank 2001(2) Civil Court Cases 561.; Bhim Singh v. Kan Singh 2004(2) RCR (Crl.) 22. and M/s. Bedi Sons Steels & Wires v. M/s. B.G. Brothers. 2002(2) Civil Court Cases 23 (P&H). In this regard reliance placed upon Yankay Drugs and Pharmaceuticals Ltd v. M/s. City Bank 2001(2) Civil Court Cases 561.; Bhim Singh v. Kan Singh 2004(2) RCR (Crl.) 22. and M/s. Bedi Sons Steels & Wires v. M/s. B.G. Brothers. 2002(2) Civil Court Cases 23 (P&H). A perusal of these judgments goes to show that it has been categorically held that it is only typographical mistake which can be corrected by the court by invoking its inherent powers. In the case in hand, on the basis of cheque dated 31.3.2003 having been presented in the bank for encashment and having been returned unpaid vide memo dated 14.6.2003, notice was served upon the accused which is dated 22.7.2003 and the present complaint was filed. The complaint in question correctly specifies the number and date of cheque; date of the memo and date of the notice. The notice dated 22.7.2003 which has been got exhibit mark as C6 speaks about the cheque dated 31.3.2002 issued by the accused and having been dishonoured by the bank vide memo dated 14.6.2003. The counsel for the complainant/ applicant by present application wants to change the date of the last memo and for this purpose he has placed on the file fresh memo dated 2.7.2003. It is noteworthy that the change which the applicant wants to incorporate is not at all typographical mistake but if the present application is allowed it will entirely change the nature of the case, the offence under Section 138 being of highly technical character. Notice in the present case on the basis of which the present complaint has been filed was got served upon the accused on the basis of cheque dated 31.3.2003 which was dishonoured vide memo dated 14.6.2003. Giving notice and demanding payment of the amount covered by this cheque is one of the main ingredients under Section 138 Negotiable Instruments Act. If the main ingredient is not correct no offence is made out under Section 138 of the Negotiable Instruments Act. Thus if the complainant is allowed to make the proposed changes, it would severely affect the notice as no proper notice as per this date would be deemed to have got served upon the accused. So finding no merit in the application, the same is dismissed." 6. Thus if the complainant is allowed to make the proposed changes, it would severely affect the notice as no proper notice as per this date would be deemed to have got served upon the accused. So finding no merit in the application, the same is dismissed." 6. Complainant/respondent filed a revision petition against the order passed by the learned trial Court which was allowed by the learned Sessions Judge by observing as under: "6. Before proceeding further, it may be clarified first whether the mistakes as pointed by the complainant/revisionist in the complaint were typographical mistake or not and for that letter dated 18.3.2006, which was issued by the Oriental Bank of Commerce, Patiala to the complainant, may be referred to where the date has been clearly mentioned as 28.6.2003. The certificate shows that Manjit Kaur wife of Brij Mohan Singh Walia, resident of house No. 16E, New Lal Bagh Colony, Patiala, was having account No.1631 with their bank branch. On 28.6.2003, she deposited a cheque of ICICI bank of Rs.10,25,000 for collection. The said cheque was sent for collection to their Chandigarh Branch, which was returned unpaid on 7.7.2003. While in the complaint filed by the complainant, the date has been shown as 14.6.2003 where the complainant had presented the cheque lastly on 28.6.2003 in her account at Oriental Bank of Commerce, New Officers Colony Branch, Patiala. In this view of the matter, the mistake can be said to be typographical mistake. Similarly, the cheque was dishonoured and returned uncashed with the memo lastly on 2.7.2003 and not dated 14.6,2003. In this view of the matter, the mistakes can be said to be typographical mistakes. 7. The courts exist for dispensation of justice and not for its denial for technical reasons which law and justice otherwise demand. Similarly, the cheque was dishonoured and returned uncashed with the memo lastly on 2.7.2003 and not dated 14.6,2003. In this view of the matter, the mistakes can be said to be typographical mistakes. 7. The courts exist for dispensation of justice and not for its denial for technical reasons which law and justice otherwise demand. Even though inherent power saved under Section 482 Cr.P.C. is only in favour of Hon ble High Court, the subordinate Criminal Courts are also not powerless to do what is absolutely necessary for dispensation of justice in the absence of a specific enabling provisions provided there is no prohibition and no illegality or miscarriage of justice is involved." Learned counsel for the petitioner has challenged the aforesaid order passed by the learned Sessions Judge, Patiala, primarily on the ground that the learned Sessions Judge had committed an error in coming to the conclusion that a typographical error could be corrected by the learned trial Court in exercise of inherent jurisdiction in order to advance the cause of justice. This plea of the petitioner deserves to be accepted. 7. The Code of Criminal Procedure does not have any provision for exercise of inherent power except under Section 482 Cr.P.C. under which the exercise of inherent power is only with the High Court and not the Courts subordinate to it. This view finds support from the judgment of the Hon ble Supreme Court in the case of Major General A.S. Gauraya and another v. S.N. Thakur and another 1988(1) Recent Criminal Reports 3. wherein the Hon ble Supreme Court was pleased to lay down as under: "9. Section 249 of the Criminal P.C. enables a Magistrate to discharge the accused when the complainant is absent and when the conditions laid down in the said section are satisfied. Section 256(1) of the Criminal P.C. enables a Magistrate to acquit the accused if the complainant does not appear. Thus, the order of dismissal of a complaint by a criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the nonappearance of the complainant and proceed with it when an application is made by the complainant to revive it. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the nonappearance of the complainant and proceed with it when an application is made by the complainant to revive it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar 1962 Supp. (2) SCR 297: AIR 1962 SC 876. filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C. does not contain any provision enabling the criminal Court to exercise such an inherent power. 10. In D.B. Sethi v. Dewan 1971(7) Delhi LT 162. a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. In para 9, the Court observed as follows: "9. As long as the order of the Magistrate does not amount to a judgment or a final order there is nothing in the Criminal P.C. prohibiting the Magistrate from the entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order: During the course of the proceedings, a Magistrate has to pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them..." We would like to point out that this approach is wrong. What the Court has to see is not whether the Code of Criminal Procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to recall the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with Section 367 (old Code) of the Criminal Procedure Code as to what should be the contents of a judgment. In our view, the entire discussion is misplaced. The Delhi High Court referred to various decisions dealing with Section 367 (old Code) of the Criminal Procedure Code as to what should be the contents of a judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for nonappearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction. 11. For our purpose, this matter is now concluded by a judgment of this Court in the case of Bindeshwari Prasad Singh v. Kali Singh. 1977(1) SCR 125: AIR 1977 SC 2432. We may usefully quote the following passage at page 126 of SCR at p. 2433 of AIR: "...Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the Criminal P.C. of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Criminal P.C. does contain a provision for inherent powers, namely, Section 561A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil P.C, the Subordinate Criminal Courts have no inherent powers. In these circumstances, therefore, the Learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact, after having passed the order dated 23.11.1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complainant was entirely without jurisdiction. This being the position, all subsequent proceedings following upon recalling the said order would fall to the ground including order dated 3.5.1972, summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. This has been held by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar (supra). For these reasons, therefore, the appeal is allowed. The order of the High Court maintaining the order of the Magistrate dated 3.5.1972 is set aside and the order of the Magistrate dated 3.5.1972 summoning the appellant is hereby quashed." 8. Learned counsel for the petitioner contended that respondent could not rectify a typographical error in order to bring the complaint with limitation though the same would be barred if fresh complaint is filed after correcting the typographical error. 9. Learned counsel for the petitioner in support of this contention placed reliance on the judgment of the Hon ble Madras High Court in the case of M/s. Sri Meenakshi Saw Mill v. M/s.Cauveri Timber Co. Pvt. Ltd.2004(3) RCR (Criminal) 640. 10. Learned counsel for the petitioner also contended that in view of the averments made in the complaint, no offence was made out and, therefore, he cannot be allowed to rectify such defect by way of amendment. In support of this contention, reliance was placed on the judgment of this Court in the case of M/s. Kumar Industries, Kapurthala v. Sohan Lal 2002(2) RCR (Criminal) 111. wherein this Court was pleased to lay down as under: "49. Relying upon this decision, the learned counsel for the 1st respondent/complainant contends that, this is why the 1st respondent complainant has filed a petition for supplementing the complaint and for bringing forth the correct numbers of cheques etc. But, this decision relied upon by the learned counsel for the 1st respondent/complainant will not be of help to the complainant in the circumstances of the case. But, this decision relied upon by the learned counsel for the 1st respondent/complainant will not be of help to the complainant in the circumstances of the case. The defect that has crept into the complaint i.e. the omission to give the correct cheque numbers is not due to any act omission on the part of the petitioners or the other accused. The complainant has given the number of cheques, which cheques, according to the complainant himself, have been taken back and fresh cheques were issued. Therefore, the accused are in no way responsible for the defect in the complaint. Even otherwise, the question is whether the complainant can amend the complaint or supplement the complaint by giving the correct cheque numbers etc. In the case before the Hon ble Supreme Court, it was a case of misdescription of the parties. In spite of calling for the information, the industrial unit did not give the required information. Therefore, instead of making the company which owned the industrial unit as an accused, the industrial unit was made the accused. The Chairman, Vice-Chairman, the Managing Director and the members of the Board of Directors were already arrayed as the accused. Therefore, in the circumstances, it was considered to be a formal technical defect, which could be cured by an amendment. But, in the present case, the complainant knowing fully well that the cheques bearing Nos.466337 to 466340 were taken back and cheque Nos. 2287334 to 2287337 were issued, and despite the fact that this fact has been mentioned in the notice issued under Section 138 of the Negotiable Instruments Act on behalf of the complainant to the accused, based the complaint on the cheques bearing Nos.466337 to 466340 without even mentioning anything about the other set of cheques. Obviously, the complaint is based upon the cheques bearing Nos. 466337 to 466340. While that being so, the complainant introduced into evidence the cheques bearing Nos. 2287334 to 2287337 in proof of the complaint. So, we find that the cheque on which the complaint is based, have not been produced, wheresas a different set of cheques was produced into evidence. The summoning order has been passed only on the basis that the cheques concerned in the complaint were 466337 to 466340 only without taking note of the fact that a different set of cheques was introduced into evidence. 50. The summoning order has been passed only on the basis that the cheques concerned in the complaint were 466337 to 466340 only without taking note of the fact that a different set of cheques was introduced into evidence. 50. Therefore, we find that not only the complaint is defective, but also there is total non-application of mind by the learned Magistrate also. This is not a mere technical defector a mere misdescription of the parties which could be allowed to be amended. The cheques are the very basis of foundation of the complaint. So, when the very foundation has not been properly laid by giving the correct numbers of the cheque the complaint itself becomes not maintainable. Such a defect which goes to the root of the matter cannot be allowed to be amended and the complainant cannot be allowed to supplement the complaint by giving the numbers of fresh cheques as the basis of the complaint. The complainant cannot thus be made to suit the evidence introduced. Therefore, in my view, the complaint has to fail and to be quashed on that account." 11. Learned counsel for the petitioner also placed reliance on the judgment of the Hon ble Madras High Court in the case of Villayagam and others v. Subash Chandran and etc., 2000(3) RCR (Criminal) 4 to contend that the complainant has to suffer for defects in the complaint and the learned Magistrate has no power to return the complaint for removing the defects. 12. Mr. Chanan Singh, learned counsel appearing on behalf of the respondent complainant, however, placed reliance on the judgment of the Rajasthan High Court in the case of Bhim Singh v. Kan Singh, (supra) to contend that mistake regarding number and date of cheque in a complaint can be corrected by the trial Court in exercise of inherent jurisdiction. 13. The learned counsel for the respondent also placed reliance on the judgment of this Court in the case of M/s. Bedi Sons Steels and Wires v. M/s. B. G. Brothers (supra) to contend that the court can grant permission to rectify the defects in the format of complaint. 14. 13. The learned counsel for the respondent also placed reliance on the judgment of this Court in the case of M/s. Bedi Sons Steels and Wires v. M/s. B. G. Brothers (supra) to contend that the court can grant permission to rectify the defects in the format of complaint. 14. Learned counsel for the respondent also raised a plea that the present petition is not competent as revisional powers of Sessions Judge are co-extensive with the powers of High Court under Section 401(1) of the Code of Criminal Procedure and, therefore, once the revisional powers are exercised by the learned Sessions Judge, this Court cannot exercise the powers to set aside the impugned order. In support of this contention, reliance was placed on the judgment of the Andhra Pradesh High Court in the case of Puvvula Abbul v. The State House Officer, Law and order, III Town Police Station. 1975 Criminal Law Journal 139. However, this plea of the respondent is totally misconceived. 15. In the present case order of the learned trial Court has been set aside by the learned Sessions Judge and, therefore, the present petition cannot be treated to a second revision petition. Even otherwise also, the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is not ousted to correct the illegality or irregularity in the order passed by the learned Sessions Judge. The judgments relied upon by the learned counsel for the respondent are also to be treated per incriam in view of the law laid down by the Hon ble Supreme Court in the case of Major General A.S. Gauraya and another (supra) holding that the trial Court has no inherent power under the Code of Criminal Procedure and, therefore, in exercise of inherent power, it was not open to the learned trial Court to have allowed the amendment of the complaint as ordered by the learned Sessions Judge. The order passed by the learned trial Court was in consonance with the law which did not call for interference by the learned Sessions Judge. Consequently, this petition is allowed. The order passed by the learned Sessions Judge is set aside and that of the trial Court is restored.