Rajasthan High Court - Jodhpur

Hawa Singh vs Madan Lal on 17 August, 2023

Bench: Madan Gopal Vyas

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2838/2018

Hawa Singh S/o Sh.Gopi Ram, Aged About 34 Years, R/o Ward No 8, Near Gaushala , Tara Nagar , Distt. Churu

----Petitioner Versus Madan Lal S/o Sh. Chandra Dass, Aged About 60 Years, R/o Ward No 8, Tara Nagar , Distt. Churu

----Respondent

For Petitioner(s) : Mr. Mahaveer Bishnoi For Respondent(s) : Mr. Pradeep Shah and Mr. Chakravarti Singh Rathore

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Order

DATE OF ORDER 17/08/2023

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

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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 Vs. Brahmanand Tiwari: 2014 (3)

DCR 778.

(ii) VK Gupta Vs. Manjit Kaur: 2009(1) DCR 769.

(iii) Jai Mata Traders Vs. Unique Foundary Regd.: 2011 (2) DCR 3

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(iv) Madan Vs. 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 Vs. Achar Kumar: 2009 (1) Civil LJ 181.

(ii) Bhim Singh Vs. Kan Singh: 2007(1) Cr.L.R. (Raj.) 268.

(iii) Dalpat Singh Sankhala Vs. State of Rajasthan & Anr.: 2013

(4) Cr.L.R. (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.

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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. 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

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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"

9. 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.

10. 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.