Mohan S/O Lahanuji Sakore vs Kalpatru Agencies Thr. ...
2023 Latest Caselaw 4394 Bom

                                     -1-          15.WP.717.2022. Judgment.odt



 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           NAGPUR BENCH : NAGPUR.

       CRIMINAL WRIT PETITION NO. 717 OF 2022

 PETITIONER                    :     Mohan S/o. Lahanuji Sakore, Aged
                                     about 45 years, Occ: Business, R/o. At
                                     Post Kharwadi, Tq. Chandur Bazar,
                                     Dist. Amravati.

                                           //VERSUS//

 RESPONDENTS                   : 1. Kalpatru Agencies, Through
                                    Proprietor's Power of Attorney
                                    Holder- Shri Prakash S/o. Vitthalrao
                                    Kaware, Aged about 52 years, Occ:
                                    Private Job, R/o. Dahane Nagar,
                                    Yashoda Nagar, Main Road, Amravati,
                                    Tq. & Dist. Amravati.

 Amended as per Hon'ble            2. Nitin M. Hutke Proprietor Kalpatru
 Court's Order dt. 12.10.22.
                                      Agencies, Aged-Major O/At Dahane,
                                      Nagar, Yashoda Nagar, Main Road,
                                      Amravati, Tq. & Dist. Amravati.

**************************************************************
  Mr. J.Y. Ghurde, Advocate for the Petitioner.
  Ms. Mohini A. Sharma, Advocate for the Respondents.
**************************************************************
                       CORAM : G. A. SANAP, J.
                       RESERVED ON :     8th FEBRUARY, 2023.
                       PRONOUNCED ON : 28th APRIL, 2023

JUDGMENT

Heard.

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02] Rule. Rule made returnable forthwith. The petition is

heard finally by consent of the learned advocates for the parties at

the admission stage.

03] In this criminal writ petition, challenge is to the

judgment and order dated 22nd August, 2022 passed by the learned

Additional Sessions Judge, Amravati, whereby the learned

Additional Sessions Judge allowed the revision application filed by

the complainant and allowed the amendment application made by

the complainant in the Court of Judicial Magistrate First Class,

Amravati. The learned Judicial Magistrate First Class, Amravati

had rejected the application made by the complainant, seeking

amendment to the complaint filed under Section 138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as "the

N.I. Act" for short).

04] The relevant facts are as follows:

Petitioner is the accused. Complainant is the proprietary

concerned represented through its proprietor. In this judgment the

parties would be referred by their nomenclature in the complaint.

The complainant deals in selling of poultry feed in the name and

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style as Kalpatru Agencies. Nitin Madhavrao Hutke is the

proprietor. The accused has a friendly relation with him. The

accused is having a Boiler Poultry Farm at Kharwadi. As agreed

between them, the complainant supplied the poultry feed to the

accused on credit basis. The amount of Rs.2,08,515/- was

outstanding against the accused. At the request of the complainant

instead of making the payment, the accused issued a cheque

bearing No.640238 dated 23rd January, 2018 for Rs.2,08,515/-

drawn on his account maintained with the State Bank of India,

Chandur Bazar Branch, Amravati. On presentation of the cheque,

it was dishonoured on the ground that the payment was stopped by

the drawer. After issuing the notice, the complainant filed the

complaint.

05] The complainant adduced his evidence. After recording

the statement of the accused under Section 313 of the Code of

Criminal Procedure, 1973 (Cr.PC), the matter was adjourned for

the defence evidence. On the same date, the complainant made an

application, seeking amendment to the complaint. According to

the complainant, due to oversight, a typographical mistake has

occurred while mentioning the amount of cheque as Rs.2,08,575/-

instead of Rs.2,08,515. It is also stated that as far as the year of the

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transaction is concerned, a mistake has occurred in the complaint.

The year of transaction was 2016, however, it was mentioned as

2017. It is submitted that this amendment was necessary. The

amendment was not intended to change the nature of the

complaint. The amendment according to the complainant was just

to rectify the curable infirmity or defect. According to him, no

prejudice would be caused to the accused, because the accused has

admitted almost all the facts.

06] The accused opposed the application. According to the

accused, there is no provision in the Cr.PC for amendment of the

complaint. The amendment sought for was intended to fill up the

lacuna left in the case of the complainant. A right has accrued in

favour of the accused. The amendment was substantial in nature

and as such would cause prejudice to the accused.

07] The learned Magistrate, on going through the record and

proceedings, found that the amendment was intended to fill up the

lacuna and therefore, the learned Magistrate rejected the

amendment application.

08] The learned Additional Sessions Judge, in the revision

filed by the complainant, did not agree with the learned Magistrate

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and as such set aside the order of the learned Magistrate and

allowed the amendment application. The accused is before this

Court against the said order.

09] I have heard Mr. J.Y. Ghurde, learned advocate for the

petitioner/accused and Ms. Mohini A. Sharma, learned advocate

for the respondents/complainant. Perused the record and

proceedings.

10] Learned advocate for the accused submitted that the

amendment sought to be made by the complainant does not relate

to a simple infirmity. Learned advocate pointed out that the

complainant in his evidence has categorically admitted that the

year of the transaction was 2016, whereas in his pleading he has

stated that the year of transaction was 2017. Learned advocate

further submitted that the amount mentioned in the cheque and

the one mentioned in the notice and the complaint is different.

Learned advocate submitted that this application was made at a

belated stage. The application was hit by delay and laches. Learned

advocate further submitted that the amendment sought to be made

was a substantial amendment to fill up the lacuna, which would

definitely cause prejudice to the accused in his defence. Learned

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advocate, therefore, submitted that the order passed by the learned

Additional Sessions Judge, is required to be quashed and set aside.

In support of his submission, he has placed reliance on the decision

in the case of S.R. Sukumar Vs. S. Sunaad Raghuram [(2015) 9

SCC 609].

11] Learned advocate for the complainant, placing reliance

on the judgment in the case of S.R. Sukumar (supra), submitted

that it supports the case of the complainant and not the case of the

accused. Learned advocate submitted that in the totality of the

undisputed facts and circumstances, the amendment was not

intended to fill up the lacuna. It is submitted that it was intended

to correct the typographical mistake and error occurred, while

drafting the complaint. Learned advocate submitted that it was a

curable infirmity or defect, which can be corrected by a formal

amendment. Learned advocate submitted that in the case of S.R.

Sukumar (supra), the Hon'ble Apex Court has held that even

though there is no specific provision in the Cr.PC to amend either

the complaint or petition filed under the provisions of the Cr.PC,

the Court can allow a formal amendment to correct the curable

infirmity or defect in the proceeding. Learned advocate further

submitted that the accused has admitted the transaction between

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him and the complainant. He has also admitted the issuance of

cheque. It is further submitted that in his reply to the notice issued

by the complainant, he has admitted that transaction was of the

year 2016. Learned advocate submitted that the learned Additional

Sessions Judge has taken all these facts into consideration, while

considering the revision application.

12] In order to appreciate the rival submissions, I have gone

through the record and proceedings. At the outset, it would be

necessary to consider the law laid down in the case of S.R.

Sukumar (supra). The Hon'ble Apex Court in this case has

considered its earlier decision in the case of U.P. Pollution Control

Board Vs. Modi Distilleries and others [(1987) 3 SCC 684]. In this

case, the Hon'ble Apex Court has held that if the amendment

sought to be made relates to simple infirmity, which is curable by

means of formal amendment and by granting such an amendment,

no prejudice is likely to be caused to the other side,

notwithstanding the fact that there is no enabling provision in the

Code for entertaining such amendment, the Court may permit

such an amendment to be made. It is further held that if the

amendment sought to be made in the complaint does not relate

either to a curable infirmity which can be corrected by a formal

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amendment or if there is likelihood of prejudice to the other side,

then the Court shall not allow the amendment in the complaint. It

is further pertinent to note that in this case, the Hon'ble Supreme

Court granted amendment despite making a note that the

amendment sought to be made in the complaint was not of a

formal in nature, but a substantial amendment. It is further seen

on perusal of this judgment that in the case before the Hon'ble

Supreme Court, the amendment application was made before

taking cognizance and issuance of process.

13] In order to consider the applicability of this settled legal

position to the facts of the case, it would be necessary to advert to

the facts of the case. It is to be noted that during the course of

cross-examination, certain questions were asked to the witness. It is

stated that on the basis of the answers given by the witness, the

mistake in mentioning the amount of the cheque was realised. In

the cheque, the amount in figures was mentioned as "208575",

however in words, it was written as "two lac eight thousand five

hundred fifteen only". It is, therefore, apparent that a mistake

appears to be bona fide. The accused has admitted his signature on

the cheque. He has also admitted that the cheque in question was

issued as a security. It is his case that it was a blank cheque, but it

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was misused in the year 2018 by the complainant. In his reply to

the notice, he has stated that in the month April-May, 2016, the

accused had purchased poultry feed from the accused for his

poultry farm. He has further stated that the poultry feed supplied

by the complainant was of inferior quality and therefore, it was sent

for analysis. The report of analysis clearly mentions that the quality

of the feed was poor. It is, therefore, his case that there was a

dispute on that count and therefore, the complainant was not

entitled to get the money for such a poor quality feed. This is the

sum and substance of his defence.

14] It appears on perusal of his defence reflected in the

notice that he is not disputing the nature of the transaction

between him and the complainant. He is also not disputing the

year of the transaction. It is not his case that the transaction took

place in the year 2017. It is seen on perusal of the cheque that in

words, the amount has been correctly written, however, in the

figure a mistake has occurred. It is apparent that in place of digit

"1", digit "7" has been written.

15] In this context, it would be necessary to consider the

provisions of Section 18 of the N.I. Act. As per this section, it is

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provided that if the amount undertaken or ordered to be paid is

stated differently in figures and in words, the amount stated in

words shall be the amount undertaken or ordered to be paid. In

this case, the amount of cheque written in words is correct. There is

a mistake of one digit while writing the amount in figures. The

year of the transaction has been stated in the reply by the accused

as 2016.

16] In the above background, the question that needs to be

addressed is whether this amendment is a formal in nature or

intended to change the core and crux of the case of the

complainant. On appreciation of the rival submissions and on

going through the proposed amendment, I am convinced that it

relates to a simple infirmity. It is seen that due to oversight, the

mistake had occurred in mentioning the figure of the cheque as

well as the year of the transaction. The defect sought to be

corrected in the facts and circumstances has to be held as a curable

infirmity or defect.

17] The next important aspect that needs to be addressed is

the likely prejudice to the accused by granting this amendment. In

my view, in the backdrop of the abovestated observation, touching

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the facts, no prejudice will be caused to the accused by granting the

amendment. The accused has admitted the year of the transaction.

According to the complainant, a typographical mistake has

occurred while mentioning the year as 2017 instead of 2016. In

this case also there is a mistake while mentioning one digit instead

of "6", it is mentioned as "7". It is true that in the cross-

examination, certain admissions have been given by the

complainant.

18] On consideration of the material on record, I am of the

view that the admissions given in the cross-examination would still

be available to the accused to substantiate his defence. However, it

cannot be done in isolation. He will be entitled to make use of it in

the totality of the facts, circumstances and evidence brought on

record. As such, the permission to amend the curable infirmity or

defect will not cause any prejudice to the accused. The accused will

get a right to recall the witness for further cross-examination to deal

with the facts corrected pursuant to the amendment. Similarly, he

will get an opportunity to lead his evidence in rebuttal. This right

of the accused cannot be diluted. In view of this right of the

accused, it cannot be said that the accused would be prejudiced in

his defence. The decision in the case of S.R. Sukumar (supra)

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would, therefore, be applicable to this case to substantiate the case

of the complainant and not of the accused. Accordingly, the

petition is dismissed. Rule stands discharged.

(G. A. SANAP, J.)

Vijay