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2023 DIGILAW 55 (JK)

Mushtaq Ahmad Khanday v. Mushtaq Ahmad Parray

2023-02-17

VINOD CHATTERJI KOUL

body2023
JUDGMENT : 1. These are two petitions relating to same subject-matter. By order dated 21st May 2022, both the petitions were directed to be listed together. 2. It would be appropriate to first take up petition, being CRMM no.227/2021 and thereafter CRMM no.306/2021. CRM(M) No. 227/2021: 3. Through the medium of this petition filed under Section 482 Code of Criminal Procedure, petitioner is seeking quashment of order dated 28.07.2021 passed by learned Judicial Magistrate Beerwah (Budgam) in a complaint titled Mushtaq Ahmad Parray v. Mushtaq Ahmad Khanday. 4. The case set up by petitioner is that respondent (complainant) on 22.04.2021 filed an application for amendment of complaint dated 31.01.2018 and of Statutory Notice under Prov. (b) of Section 138 of Negotiable Instruments Act. the learned Judicial Magistrate issued notice for filing objections to the amendment application dated 22.04.2021. 5. That the petitioner objected the amendment application on facts and law in the Court of learned Magistrate Beerwah. The learned Magistrate has failed to appreciate the facts and law, has taken view contrary to the law laid down by Supreme Court in S. R. Kumar v. S. Sunaad Raghuram (2015) 9 SCC 609 . The learned Magistrate has relied upon a judgment of High Courts not on the law laid down by the Supreme Court. 6. The learned Magistrate has failed to appreciate the facts and law, has taken view contrary to the law laid down by Supreme Court in S. R. Kumar v. S. Sunaad Raghuram (2015) 9 SCC 609 . The learned Magistrate has relied upon a judgment of High Courts not on the law laid down by the Supreme Court. 6. The petitioner has challenged the order dated 28.07.2021, inter alia, on the grounds: that the order dated 28.07.2021 passed by the learned Magistrate is contrary to the law and against the procedure of Cr.PC, the learned Magistrate has taken view against the settled position, the proceedings carried by the judicial Magistrate is in contravention to mandate of procedural requirement; that the complaint filed by the respondent against the petitioner is contrary to the mandate of law and facts, the order impugned is abuse of the process of law, the order passed by the learned Magistrate will cause the great prejudice to the petitioner; that the application filed by the respondent is after thought and at the belated stage, the complainant/respondent is seeking the amendment of the complaint to cure the legal infirmity on which the process issued by the Magistrate on 31.10.2018 has been quashed by this Court vide order dated 18.03.2021 on this count the order dated 28.07.2021 is to be set aside; that the learned Magistrate has returned a finding that the petitioner has not been able to establish that the proposed amendment is curable legal infirmity that will cause prejudice to the petitioner by allowing the amendment, the learned Magistrate has failed to take judicial notice of the judgment dated 18.03.2021 by virtue of that a legal right has accrued to the petitioner more particularly on the grounds of which the judicial Magistrate has allowed the amendment the order passed by the learned Magistrate is in violation of the law and without jurisdiction as such is liable to be set aside; that the learned Magistrate has drawn an observation opposite to the judgment dated 18.08.2021. Judicial Magistrate has not applied the judicial mind while passing the impugned order dated 28.07.2021 which suffers from serious infirmity to the rational that the respondent can take alternate remedy, impugned order dated 28.07.2021 is liable to be quashed; that the learned Magistrate has failed to take the note that the respondent has issued notice dated 10.09.2018 to the petitioner which forms part of objections filed by the petitioner to the amendment application, the amendment is a formal one same cannot be allowed that too the petitioner woke up by the order/judgment dated 18.03.2021, impugned order dated 28.07.2021 is liable to be quashed; that the Judicial Magistrate has failed to appreciate the settled legal position that criminal amendment cannot be allowed to rectify the legal infirmity that too on the facts upon which process issued by the Court has been set aside, this spirited legal aspect has been completely ignored by the Judicial Magistrate while passing the impugned order dated 28.07.2021 on this count is also liable to be quashed. 7. I have heard learned counsel for parties and considered the matter. I have gone through the record on the file as also order impugned. 8. Perusal of order impugned reveals that the Trial Court has taken care of all the contentions of counsel for petitioner (accused) while passing order impugned. The Trial Court has been mindful of the fact that the Code of Criminal Procedure, as has been first contention of counsel for petitioner(counsel) before it, does not provide any explicit and express provision for amendment of criminal complaint, yet the law laid down by the Supreme Court envisions that if the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment, the court may permit such an amendment to be made. So, the Trial Court has rightly said that amendment as sought for can be permitted. The second contention of counsel for petitioner (accused) before the Trial Court had been that since the cognizance order dated 31st August 2018 had been set-aside by this Court in a petition, bearing CRMC no.475/2018 vide order dated 18th March 2021, the Trial Court was precluded to permit filing of an application for amendment of complaint. The second contention of counsel for petitioner (accused) before the Trial Court had been that since the cognizance order dated 31st August 2018 had been set-aside by this Court in a petition, bearing CRMC no.475/2018 vide order dated 18th March 2021, the Trial Court was precluded to permit filing of an application for amendment of complaint. The Trial Court in the context of this contention of counsel for petitioner has reproduced operative portion of the order dated 18th March 2021; in terms whereof respondent (complainant) has been given liberty to avail appropriate remedy vis-à-vis the inadvertent mistake crept in the complaint and has rightly rejected the aforesaid contention of counsel for petitioner. The third contention of counsel for petitioner (accused) before the Trial Court had been that proposed amendment was a legal infirmity and allowing the same would cause prejudice to petitioner (accused). The Trial Court while dealing with the said contention has rightly said that the memos issued by the concerned Bank, attached with the complaint, give the date as 4th October 2018 and it is, therefore, due to typographical error that the date of memos has been shown as 16th October 2017 and that permitting to make correction to that extent in the complaint would be in the interests of justice. Thus, there is no cogent or material ground to call for interference and quashment of order impugned and resultantly the instant petition is liable to be dismissed. 9. For the reasons discussed above, the instant petition is dismissed with connected CM(s). Interim direction(s), if any, including order dated 10th February 2022 shall stand vacated. CRM(M) No.306/2021 10. In this petition filed under Section 482 of the Code of Criminal Procedure, the petitioner prays for quashing the order dated 27.08.2021 passed by the learned Judicial Magistrate, Beerwah (Budgam) in a complaint titled Mushtaq Ahmad Parray v. Mushtaq Ahmad Khanday. 11. It has been pleaded in the instant petition that respondent (complainant) on 22.04.2021 has filed an application for amendment of complaint dated 31.01.2018 and Statutory Notice under Section 138 of Negotiable Instruments Act dated 5th October 2018. The learned Judicial Magistrate issued notice for filing the objections to the amendment application. The petitioner filed objections to the amendment application and objected the amendment application on facts and law in the court of learned Magistrate Beerwah. The learned Judicial Magistrate issued notice for filing the objections to the amendment application. The petitioner filed objections to the amendment application and objected the amendment application on facts and law in the court of learned Magistrate Beerwah. The learned Magistrate has failed to appreciate the facts and law, has taken view contrary to the law laid down by Supreme Court in S.R. Kumar v. S. Sunaad Raghuram (2015) 9 SCC page 609. The learned Judicial Magistrate on 28.07.2021 allowed the amendment of the plaint and declined the amendment of Statutory Notice under Section 138 of N. I. Act. 12. The petitioner has challenged the order dated 27th August 2021, inter alia, on the grounds: that the learned Magistrate has failed to take the note that the respondent has issued notice dated 5th October 2018 with regard to memos dated 10.09.2018 and the complaint has been filed with regard to memos dated 4th October 2018, same cannot be allowed that too in pursuance of the order/judgment dated 18.03.2021; that the order impugned passed by the learned Magistrate is contrary to the law and against the procedure of Cr.PC; that the Trial Court has taken view against the order judgment dated 18.03.2021; that the proceedings carried by the Trial Court is in contravention to mandate of procedural requirements; that the complaint filed by the respondent against the petitioner is contrary to the mandate of lawand facts; that the order impugned is abuse of the process of law; that the order passed by the Trial Court will cause the great prejudice to the petitioner; that the Trial Court has failed to take judicial note of the fact that demanded amount is not legally enforceable debt, that on the own statement of the respondent/complaint is the legal notice dated 5th October 2018 and the preliminary statement dated 31.10.2018;that order impugned is in violation of the law and without jurisdiction; that the Trial Court has drawn an observation opposite to the judgment dated 18.03.2021;that the Trial Court has not applied the judicial mind while passing the impugned order dated 27.08.2021 which suffers from serious infirmity to the rational that the respondent can take alternate remedy. 13. Heard and considered. 14. 13. Heard and considered. 14. As has already been observed and held herein above, that there is no infirmity in the order impugned in CRM(M) no.227/2021, permitting amendment in the complaint and that as regards amendment, the respondent (complainant) had been given liberty to avail appropriate remedy. So there was no obstacle or impediment for respondent (complainant) to approach the Trial Court to seek amendment, which has rightly been allowed by the Trial Court. And as a consequence of which, the Trial Court, obviously, was required to entertain the complaint and take cognizance and pass appropriate orders, which it has done. So there is no illegality or infirmity in the order impugned dated 27th August 2021. Resultantly, the instant petition is devoid of any merit. 15. In view of above, the instant petition is dismissed with connected CM(s). Interim direction(s), if any, shall stand vacated. 16. Copy of this order be sent down.