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2018 DIGILAW 36 (MP)

Shyama Patel v. Mehmood Ali

2018-01-10

SUSHIL KUMAR PALO

body2018
ORDER 1. This petition under section 482 of the CrPC has been filed to assail the order dated 10.2.2017, passed by Sessions Judge, Shahdol, in Criminal Revision No. 78/2015, whereby the order dated 27.7.2015 passed by the learned JMFC, Shahdol, in Criminal Case No. 1957/2014, for offence under section 138 of the Negotiable Instruments Act, has been set aside wherein the learned JMFC had allowed certain amendments in the complaint. 2. The complaint filed by the complainant/petitioner against the respondent-accused for offence under section 138 of the N.I. Act, alleging the dishonour of the cheque. In the complaint case, the petitioner moved an application for amendment at paragraph 5 and other parts claiming that the date mentioned in the complaint dated 28.5.2013 has been erroneously typed, because of typographical mistake, which ought to have been 28.5.2014. The same was allowed by the learned JMFC vide order dated 27.7.2015 and amendment was carried out. 3. The accused-respondent preferred criminal revision before the learned Sessions Judge, Shahdol, the same was allowed on 10.2.2017 and the order dated 27.7.2015 has been set aside, holding that the complainant is not entitled to make any amendment in the complaint under section 138 of the N.I. Act. 4. Therefore, the petitioner-complainant preferred this petition under section 482 of the CrPC requesting to set aside the order passed by the revisional Court and to restore the order passed by learned JMFC on 27.7.2015. It is claimed that in the criminal complaint case by inadvertent mistake cheque dated 28.5.2013 has ought to have been 28.5.2014. It is a clerical and typographical error, therefore, the petitioner submits that the order passed by the revisional Court is not good in the eyes of law. 5. Per contra, learned counsel for the respondent-accused submits that in a criminal case there is no provision of amendment in the complaint. The amendment when carried out will adversely affect the interest of the accused and such amendment, therefore, is not maintainable. 6. Learned counsel for the respondent-accused placed reliance on Kunstocom Electronics v. State of M.P. [2002(5) MPLJ 178], in which it has been held that, "there is no provision to amend the pleadings in the Criminal Procedure Code giving right to the parties to file an application for amendment in the pleadings and give power to the lower Court to allow the same". 7. 7. But the above view of this Court has been dissented in the case of Pt. Gorelal and another v. Rahul Punjabi [ 2010(I) MPWN 62 = 2010(II) MPJR 228 ], and held that "if the Court whether the civil or criminal possesses inherent power to do right and to undo a wrong in course of administration of justice and the amendment allowed by the JMFC was maintained". 8. In the case of Pt. Gorelal (supra), Co-ordinate Bench of this Court has referred the cases of Kunstocom Electronics (Supra). 9. In the case of State of M.P. v. Awadh Kishore Gupta [ 2004(2) JLJ 234 SC], the apex Court has held that "every Court High Court of Madhya Pradesh whether civil or criminal possesses inherent power to do right and to undo a wrong in course of administration of justice." 10. Reliance has also been placed in the matter of Bhim Singh v. Kan Singh [ 2004(2) DCR 158 , wherein in a prosecution under section 138 of the Negotiable Instruments Act, Rajasthan High Court has held that "application for amendment of cheque number and date of information by bank on ground of typographical mistake which was allowed by the trial Court, it was held that trial Court has inherent power to rectify such typographical mistakes to do justice." 11. It would be appropriate to mention here a decision rendered in the matter of Babli Majumdar v. State of West Bengal [2009(1) DCR 363], wherein a case under section 138 of the Negotiable Instruments Act, wherein wrong cheque number was mentioned, Calcutta High Court held that "wrong number on dishonour cheque is of no relevance for the drawer to pay the amount covered by such cheque;." 12. In the case of Pradeep Premchandani v. Smt. Neeta Jain in Miscellaneous Criminal Case No. 2907/2007 decided on 18.9.2008, wherein this Court has held that "so far as wrong mention of the cheque number either in the notice or in the complaint are concerned, the Court would always have the jurisdiction to look into the fact and do complete justice in the matter." 13. In view of the circumstances prevailing in the case and the legal analysis expressed as above, this petitions is allowed. The year wrongly mentioned as 2013 in place of 2014 is a clerical error. The same typographical error can be corrected. In view of the circumstances prevailing in the case and the legal analysis expressed as above, this petitions is allowed. The year wrongly mentioned as 2013 in place of 2014 is a clerical error. The same typographical error can be corrected. The view expressed in the case of State of M.P. v. Awadh Kishore Gupta (supra), is followed. The order impugned dated 10.2.2017 passed by the Sessions Judge, Shahdol, in Criminal Revision No. 78/2015, is set aside and the order passed by learned JMFC dated 27.7.2015 is restored. P.C. Paliwal for petitioner; Shailendra Singh for respondent No.1; Vivek Lakhera, Government Advocate for respondent No.2/State.