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2018 DIGILAW 417 (RAJ)

Kanwar Lal v. National Seeds Process

2018-02-02

SANDEEP MEHTA

body2018
JUDGMENT Sandeep Mehta, J. - By way of the instant miscellaneous petition under Section 482 CrPC, the petitioner complainant has approached this court for challenging the order dated 28.02.2017 passed by learned ACJM, Phalodi in connection with Complaint No.1616/2016 rejecting the prayer made by the petitioner to allow him to make correction in the cause title of the complaint to be specific in the name of the respondent-accused. The petitioner filed the complaint in question under Section 138 of the N.I. Act while arraigning Ghanshyam, Partner, National Seeds Process as accused for the offence. It was alleged that the total amount due to be paid by the respondent to the petitioner towards their business transactions was running into nearly about Rs.70 lacs of which, the accused paid up a sum of Rs.45 lacs to the complainant. For the remaining amount, the disputed cheque was given to the petitioner for a sum of Rs.26,35,000/-, which upon being presented, was dishonoured. The petitioner gave a notice to the respondent in the name of Ghanshyam, Partner, National Seed Process, Rajkot. Admittedly, no response was offered by the respondent to the said notice. Thereupon, the petitioner complainant filed the complaint in question in the Court of ACJM, Phalodi for the offence under Section 138 of the N.I. Act arraying the firm as a party respondent through its partner Ghanshyam. The petitioner claims that during pendency of the complaint, he realized that the actual and complete name of the respondent is Kishore @ Ghanshyam and that he is commonly called as Ghanshyam. Accordingly, he moved an application seeking correction in the cause title of the complaint, which was dismissed by the trial court by the order dated 28.02.2017, which is assailed in the instant miscellaneous petition. 2. Mr. Ballani, learned counsel representing the petitioner,has placed reliance on the judgments in the cases of Bhim Singh Vs. Kan Singh [MANU/RH/0367/2003] , Maan Agro Centre Vs. Eid Parry (India) Ltd. And Anr. [MANU/MH/1118/2004] and Azizoddin Vs. Pandit Dindayal Nagari Sahakari Patpedi Ltd. [MANU/MH/1389/2014] and urges that the above error which occurred on part of the complainant petitioner while filing the complaint, was inadvertent and bonafide. The accused who does business from Rajkot was in common parlance known by the name of Ghanshyam and that is why, the petitioner filed the complaint arraying Ghanshyam, Partner, National Seeds Process as the accused. The accused who does business from Rajkot was in common parlance known by the name of Ghanshyam and that is why, the petitioner filed the complaint arraying Ghanshyam, Partner, National Seeds Process as the accused. He further submits that the steps to rectify the genuine and bonafide error were taken even before the respondent was served and thus, no prejudice was likely to be caused to him and thus, the trial court should have allowed the rectification application. 3. Per contra, learned counsel Mr. Khiyani, representing the respondent, vehemently opposes the submissions advanced by the petitioner's counsel. Nevertheless, he too does not dispute the fact that no response whatsoever was given to the notice of dishonour issued on behalf of the petitioner complainant at the Firm's address. It is also not in dispute that the cheque in question has been issued on behalf of the Firm National Seeds Process by its partner Kishore. 4. Since the respondent firm does its business from Junagarh, Gujarat and the petitioner does his business from Phalodi, it is quite possible that the petitioner may be knowing the respondent by only his name of calling i.e. Ghanshaym and the omission to mention his name in the complaint exactly as given in the bank account appears to be because of bonafide error and ignorance and therefore, the trial court should have acted objectively and should have allowed the petitioner to make the requisite correction in the cause title of the complaint. It may be stated here that the application for correction was filed even before the process was served upon the accused. The impugned order ex facie does not stand to scrutiny and deserves to be set aside. 5. Resultantly, the instant miscellaneous petition is allowed. The impugned order dated 28.02.2017 passed by learned ACJM, Phalodi is hereby quashed and set aside. The petitioner shall furnish an amended cause title in the trial court on the next date of hearing. Since the respondent has been served in the instant miscellaneous petition, his service is deemed to be completed in the original complaint as well. The parties shall appear before the trial court on 15.03.2018. Thereafter, the proceedings shall be continued as per law. The respondent shall be at liberty to raise all permissible objections before the trial court at the appropriate stage. 6. The record be record be returned to the trial court forthwith.