Gorelal Malviya vs Vimlesh Shukla
2021 Latest Caselaw 4127 MP

   1     THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.36824/2021
             Gorelal Malviya Vs. Vimlesh Shukla

Gwalior, Dated:10/08/2021

       Shri Rajmani Bansal, Advocate for applicant.

       This application under Section 482 of Cr.P.C. has been filed

against the order dated 10/2/2021 passed by the Sessions Judge,

Vidisha in Criminal Revision No.22/2019, thereby affirming the

order dated 13/9/2019 passed by the JMFC, Vidisha in SCNIA

No.468/2017, by which the application filed by the complainant

under Order VI Rule 17 CPC for correction of cheque number in the

complaint has been allowed.

       It is submitted by the counsel for the applicant that the

respondent had filed a criminal complaint under Section 138 of the

Negotiable Instruments Act alleging that in discharge of legal

liability the applicant had issued a cheque No.628892 dated

10/8/2017 of Rs.1,50,000/-, but the same was returned back by the

bank on the ground of insufficient funds. During the pendency of the

complaint, an application under Order VI Rule 17 CPC was filed for

amendment in the complaint on the ground that by mistake cheque

No.628895 has been wrongly mentioned as 628892.

By order dated 13/9/2019 the Trial Magistrate allowed the

application and permitted the respondent to amend the complaint and

instead of cheque No.628892, cheque No.628895 is permitted to be

substituted.

    2     THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.36824/2021
             Gorelal Malviya Vs. Vimlesh Shukla

Being aggrieved by the order passed by the Trial Magistrate,

the applicant preferred a revision which has been dismissed by the

impugned order passed by the Sessions Judge, Vidisha.

It is submitted by the counsel for the applicant that once a

criminal complaint under Section 138 of the Negotiable Instruments

Act is filed, the same cannot be amended and to buttress his

contention, he relied upon the order passed by the coordinate Bench

of this Court in the case of Lekhraj Singh Kushwah Vs.

Brahmanand Tiwari reported in 2014 Cri.L.J. 290.

Heard learned counsel for the applicant.

The undisputed fact is that alongwith the complaint, the

respondent has filed the cheque No.628895. Even in the statutory

notice the cheque number was mentioned as 628895, however, in the

complaint, the cheque number was mentioned as 628892. The

Supreme Court in the case of S.R. Sukumar Vs. S. Sunaad

Raghuram reported in (2015) 9 SCC 609 has held that if the

amendment sought to be made relates to a simple infirmity, which is

curable by means of a formal amendment and by allowing such

amendment, no prejudice would be caused to the other side,

notwithstanding the fact that there is no enabling provision in Cr.P.C.

for entertaining such amendment, the Court may permit such an

amendment to be made.

    3     THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.36824/2021
             Gorelal Malviya Vs. Vimlesh Shukla

In the present case, the respondent/complainant has filed the

cheque No.628895. The statutory notice was also issued in respect of

cheque No.628895, however, by mistake it appears that in the

complaint cheque number was mentioned as 628892. Under these

circumstances, this Court is of the considered opinion that the

mistake is a simple infirmity, which is curable by means of a formal

amendment, and by allowing such an amendment, no prejudice would

be caused to the applicant, as he was served with a statutory notice

giving the correct cheque number, i.e.628895.

So far as the judgment relied upon by the applicant passed by

the coordinate Bench of this Court in the case of Lekhraj Singh

Kushwah (supra) is concerned, the same is distinguishable on facts.

In the case of Lekhraj Singh Kushwah (supra) the statutory notice

was issued mentioning incorrect cheque number, whereas in the

present case, it is not disputed by the counsel for the applicant that

the statutory notice was issued by mentioning the correct cheque

number, i.e.628895. The Supreme Court in the case of N. Harihara

Krishnan Vs. J. Thomas reported in (2018) 13 SCC 663 has

considered the concept of taking cognizance of offence and not

offender and its inapplicability to proceedings under Section 138 of

the Negotiable Instruments Act. As per Section 138 of the Negotiable

Instruments Act, the statutory notice is required to be given before 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.36824/2021 Gorelal Malviya Vs. Vimlesh Shukla

maintaining a complaint. If a notice is given on the basis of incorrect

cheque number, then the entire foundation will fall and the

complainant cannot maintain his complaint on the basis of incorrect

cheque number. However, in the present case, it is not the case of the

applicant that the statutory notice was issued to him by mentioning

incorrect cheque number. The Magistrate in its order has also

mentioned that the cheque number mentioned in the cheuqe, written

memo and statutory notice is 628895, whereas only in the complaint

the cheque number has been mentioned as 628892, therefore, it is a

formal infirmity. Since the facts of the present case are

distinguishable from the facts of the case of Lekhraj Singh

Kushwah (supra), therefore, the applicant does not get any

assistance from the said order.

Since the defect was a formal in nature without affecting the

maintainability of the complaint, therefore, this Court is of the

considered opinion that no jurisdictional error was committed by the

Courts below by allowing the application filed under Order VI Rule

17 CPC.

Accordingly, the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.08.17 10:57:54 +05'30'