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2023 DIGILAW 1555 (RAJ)

Hawa Singh v. Madan Lal

2023-08-17

MADAN GOPAL VYAS

body2023
ORDER : Madan Gopal Vyas, J. The present criminal misc. petition under Section 482 of Cr.P.C. has been preferred by the petitioner against the order dated 18.8.2018 passed by the learned Judicial Magistrate, Tara Nagar, District Churu in Cr. Case No.284/2016, whereby the learned trial court allowed the application filed by the respondent-complainant for amendment in the complaint under Section 138 of the Negotiable Instruments Act. 2. Briefly stated, facts of the case giving rise to the present petition are that the respondent filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner alleging dishonour of cheque no.516876 of State Bank of Bikaner and Jaipur dated 25.5.2016 for a consideration of Rs. 6, 00, 000/- due to insufficiency of funds. In para no.4 of the complaint, the respondent mentioned the cheque number as 516876. After cross-examination and after statement of the petitioner recorded under Section 313 of Cr.P.C., the respondent filed an application before the learned trial court for amendment in the complaint. It was stated that in para no.4 of the complaint the cheque no.516876 has wrongly been mentioned in place of cheque no.516786. The learned trial court vide impugned order dated 18.8.2018 allowed the said application thereby allowing amendment of the complaint. Aggrieved by the said order, the petitioner has preferred this criminal misc. petition. 3. Learned counsel appearing for the petitioner submits that while preferring the complaint, the respondent-complainant specifically stated the cheque number and account number and thereafter, the same has been mentioned in his affidavit filed for evidence. It is further submitted that during cross-examination, the respondent admitted that the cheque number and account number mentioned in the para no.4 of the complaint is true and correct. It is thus submitted that after recording of the statement of the petitioner under Section 313 of Cr.P.C., the respondent cannot be permitted to seek amendment in the complaint. The learned trial court has committed grave illegality in permitting the complainant to amend his complaint. In support of his arguments, learned counsel appearing for the petitioner relied upon the following judgments: (i) Lekhraj Singh Kushwah v. Brahmanand Tiwari: 2014 (3) DCR 778. (ii) VK Gupta v. Manjit Kaur: 2009(1) DCR 769. (iii) Jai Mata Traders v. Unique Foundary Regd.: 2011 (2) DCR 3 (iv) Madan v. Ashok Sonaji Hembade: 2014 (2) DCR 711 4. In support of his arguments, learned counsel appearing for the petitioner relied upon the following judgments: (i) Lekhraj Singh Kushwah v. Brahmanand Tiwari: 2014 (3) DCR 778. (ii) VK Gupta v. Manjit Kaur: 2009(1) DCR 769. (iii) Jai Mata Traders v. Unique Foundary Regd.: 2011 (2) DCR 3 (iv) Madan v. Ashok Sonaji Hembade: 2014 (2) DCR 711 4. Per contra, learned counsel appearing for the respondent submits that there was an inadvertent/typographical error and the learned trial court rightly allowed the application vide the impugned order. It is further submitted that by permitting the respondent to amend the complaint to the extent of amending the number of cheque, no prejudice will be caused to the petitioner. In support of his arguments, learned counsel appearing for the respondent relied upon the following judgments: (i) Prem Bhushan Soni v. Achar Kumar: 2009 (1) Civil LJ 181. (ii) Bhim Singh v. Kan Singh: 2007(1) Cri LR Raj 268. (iii) Dalpat Singh Sankhala v. State of Rajasthan & Anr.: 2013 (4) Cri LR Raj 1911. 5. Heard learned counsel for the parties and perused the material available on record as well as the impugned order. 6. A co-ordinate bench of this Court in the case of Bhim Singh (supra), while dealing with similar issue has held as under: "5. On 5.1.2002, an application was filed by the complainant petitioner in the said Court stating inter-alia that due to inadvertence and typographical mistakes, the cheque number and date of information by the Bank have been wrongly mentioned in paras No. 1 and 2 respectively of the complaint and therefore, it was prayed: (i) That in para No. 1 of the complaint, instead of cheque No. 383326, the cheque No. 343336 be read; and (ii) That in para No, 2 of the complaint, instead of date 8.1.2001, the date 9.1.2001 be read. 6. A reply to that application was filed by the respondent on 18.2.2002. 7. The said application of the complainant petitioner seeking amendment in the complaint was rejected by the learned Addl. Chief Judicial Magistrate, Nathdwara through impugned order dated 9.10.2002 holding inter-alia that since inherent power does not exist in the lower court, therefore, such mistakes could have not been rectified by him. 8. Aggrieved from the said order dated 9.10.2002 passed by the learned Addl. Chief Judicial Magistrate, Nathdwara through impugned order dated 9.10.2002 holding inter-alia that since inherent power does not exist in the lower court, therefore, such mistakes could have not been rectified by him. 8. Aggrieved from the said order dated 9.10.2002 passed by the learned Addl. Chief Judicial Magistrate, Nathdwara, this petition under Section 482 Cr.P.C. has been filed by the complainant petitioner. 9. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and gone through the record of the case. 10. Before proceeding further, it may be clarified first whether the mistakes as pointed out by the complainant petitioner in the complaint were typographical mistakes or not and for that Ex.P/ 1, which is a cheque, may be referred to where the cheque number has been clearly mentioned as 343336 and in Ex.P/2, which is a letter which was issued by the Bank to the petitioner complainant, the date has been clearly mentioned as 9.1.2001, while in the complaint filed by the complainant petitioner, the cheque number and date have been shown as 383326 and 8.1.2001 respectively. In this view of the matter, the mistakes can be said to be typographical mistakes. 11. So far as the power of this Court is concerned, this Court has ample power to allow the amendment application in that direction under Section 482 Cr.P.C. From this point of view, this petition deserves to be allowed. 12. Before parting with this order, a question arises whether such type of mistakes can be rectified by the subordinate courts or not. 13. It is an established proposition of law that court of justice must possess inherent powers, apart from the express provisions of law, which are necessary to their existence and the proper discharge of duties imposed upon them by law. The Criminal Procedure Code or for the matter of that no procedural law is ever exhaustive and in cases where circumstances required it, the courts have acted on the assumption that they possess inherent powers (as of right) to do justice for which they really exist. At the same time it must be remembered that a court has no inherent power to do that which is prohibited by the Code" 7. At the same time it must be remembered that a court has no inherent power to do that which is prohibited by the Code" 7. Similarly, in the case of Dalpat Singh Sankhala (supra), this Court while relying upon the ratio laid down by this Court in the case of Bhim Singh, held as under: "3. Having heard and considered the arguments advanced by the counsel for the parties at the bar, upon persual of the orders passed by the learned sub-ordinate Courts as well as the material available on the record, it is evident that the notice of demand given to the petitioner on behalf of the complainant was for the cheque No. 573685 issued by the petitioner which was dishonoured. There is a minor discrepancy regarding the cheque number in the complaint. The cheque number which has been mentioned in the complaint is 573585 dated 25.2.2010, whereas the correct number of the cheque is 573685 dated 25.2.2010. Thus, only a minor insignificant typographical error crept in the complaint regarding the cheque number. The learned Trial court was therefore, acting well within its powers while permitting the complainant to make necessary correction in the complaint regarding the number of the cheque" 8. On perusing para no.4 of the complaint, copy of the cheque and application for amendment of the complaint, it is clear that there was a bonafide typographical mistake. The learned Trial Court after considering all the facts and circumstances of the case has rightly allowed the application by passing the impugned order. 9. In view of the above, this court does not find any infirmity in the impugned order. The order passed by the learned trial court is well reasoned and, therefore, no interference is required to be made in the order impugned. 10. Hence, the present criminal misc. petition is dismissed. Stay application also decided accordingly.