Allowed

Gauri Shankar @ Raju Jaiswal v. State of U.P.and Another

Allahabad HC11 Jul 2022A482/12257/2022

Case brief

AI extract

What is this about?

The High Court set aside impugned orders dismissing an application to rectify the name of an accused in a cheque-dishonour case. Finding a clerical mistake and noting the courts erred in ignoring an earlier endorsement, the matter was remanded to the trial court to reconsider the issue.

What did the court decide?

Impugned orders dated 8.10.2020 and 21.12.2021 are set aside; matter remanded to trial court for fresh order after considering the earlier endorsement dated 12.12.2018.

Gauri Shankar @ Raju Jaiswal Vs State of U.P.and Another — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 84

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Case :- APPLICATION U/S 482 No. - 12257 of 2022

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Applicant :- Gauri Shankar @ Raju Jaiswal Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Ashish Pandey,Rajendra Prasad Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Heard Sri Rajendra Prasad Tripathi, learned counsel for the applicant, Dr. S.B.Maurya, learned AGA for the State and perused the record of the case.

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By way of the present application, a prayer has been made on behalf of the applicant to quash the impugned order dated 8.10.2020 passed by Judicial Magistrate First, Jaunpur in Case No.5911 of 2019 under Section 138 NI Act and as well as the order dated 21.12.2021 passed by First Additional District and Session Judge, Jaunpur in Criminal Revision No.125 of 2020.

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Learned counsel for the applicant submitted that applicant is the complainant in the present matter and he lodged a criminal complaint against opposite parties no.2 and 3 on 15.10.2016 under Section 138 NI Act and Section 419 IPC and on 11.1.2017 opposite parties no.2 and 3 were summoned in the matter but later on, it revealed that although the name of opposite party no.3 mentioned in the complaint as Krishna Singh S/o Late

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Radhey Shyam Singh but in fact his correct name is Jai Krishna Singh @ Krishna Singh S/o Late Megh Shyam Singh and, therefore, applicant moved an application to rectify the mistake on 12.12.2018 and made a prayer that in the present matter process should be issued against Jai Krishna Singh@ Krishna Singh and on 12.12.2018, i.e., the same day on the application moved by applicant, the court below issued NBW against opposite parties no.2 and 3 and directed the Superintendent of Police, Jaunpur to ensure the compliance and after that NBW were issued against opposite party no. 3 by his correct name, namely, Jai Krishna Singh @ Krishna Singh but in the meantime, Presiding OfÏcer changed and the process again was started to be issued in the name of Krishna Singh S/o Late Radhey Shyam Singh instead of Jai Krishna Singh alias Krishna Singh S/o Megh Megh Shyam Singh and when applicant approached the Court to again rectify the mistake then vide order dated 8.10.2020 his application was dismissed and against which he preferred a revision which was also dismissed by revisional court vide order dated 21.12.2021.

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Learned counsel for the applicant submitted that both the courts below without perusing

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the record of the case passed the order against applicant as earlier in the year 2018 when applicant moved an application that the correct name of opposite party no.3 is Jai Krishna Singh@ Krishna Singh and on his application process was issued against him by his new corrected name then there was no occasion for the trial court to dismiss the application moved by applicant and similarly revisional court also committed illegality in this regard, therefore, both the impugned orders are liable to be set-aside

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Per contra, learned AGA submitted that it was the duty of the applicant, who was the complainant of the case to provide correct name and address of the accused persons but the learned AGA could not dispute the fact that in the year 2018 applicant, who is the complainant of the case, himself moved an application with the prayer that due to mistake in the complaint the name of accused-opposite party no.3 has wrongly been mentioned as Krishna Singh S/o Late Rathey Shyam Singh in place of Jai Krishna Singh @ Krishna Singh S/o Sri Megh Shyam Singh and on his application on the same day trial court directed the Superintendent of Police concerned to issue NBW and it appears that due to mistake again in the year 2020 applicant moved separate

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application in this regard without informing the court that in the year 2018 an application had already been moved by him and on that application process on the correct name and address of accused-opposite party no.3 was directed to be issued and, therefore, it appears that the court below could not become aware about the order dated 12.12.2018 passed by the court and therefore, this illegality occurred. He further submitted that if there was no order dated 12.12.2018 by the trial court on the application moved by the applicant then there is no illegality in the order dated 8.10.2020 passed by the trial court and in the order passed by lower revisional court.

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Learned AGA further suggested that it is the case in which the record of the case shows that earlier on 12.12.2018 on the application of applicant,.i.e., complainant NBW with the correct name of accused-opposite party no.3 was being issued , therefore, the matter should be remanded back for the trial court to decide the same afresh.

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I have heard learned counsels for both the parties and perused the record of the case.

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The record of the case shows that applicant filed criminal complaint on 15.10.2016 against one Nagendra Prasad Singh and

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Krishna Singh S/o Late Radhey Shyam Singh and summoning order was also passed against these accused persons and thereafter during course of trial, it revealed that the name of accused-opposite party no.3 is mentioned as Krishna Singh S/o Late Radhey Shyam Singh but his real name is Jai Krishna Singh @ Krishna Singh S/o Sri Megh Shyam Singh and when this fact came to the knowledge of applicant, i.e., complainant then he moved an application with the prayer that as the name of opposite party no.3 made in the complaint as Jai Krishna Singh @ Krishna Singh, therefore, on the correct name the NBW should be issued and on his application trial court made endorsement on the same day, i.e., 12.12.2018 and issued NBW against the persons through Superintendent of Police Jaunpur and after that process were issued against accusedopposite parties no.2 and 3 in the matter and it appears that after the order dated 12.12.2018 the process against the accusedopposite party no.3 has been issued against his name Jai Krishna Singh @ Krishna Singh but later on, the Presiding OfÏcer was changed and again summons were started issuing to accused-opposite party no.3 by his name as mentioned initially in the complaint as there was no amendment was made in the

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complaint and when applicant, i.e, complaint came to know about this fact then he again moved an application on 20.2.2020 with the prayer that as the name of accused-opposite party no.3 in the complaint has wrongly been mentioned as Krishna Singh S/o Late Radhey Shyam Singh in place of Jai Krishna Singh @ Krishna Singh S/o Megh Shyam Singh, therefore, the process against the accusedopposite party no.3 should be issued on his correct name but in the application applicant did not mention about earlier order dated 12.12.2018 and therefore, it appears that the trial court could not become aware about the earlier order/endorsement made by the court dated 12.12.2018 on the application moved by applicant. Therefore, from the facts of the case it appears that there is a clerical mistake in the name of accused-opposite party no.3 which was although not rectified on record but earlier an application was moved by applicant on 18.12.2018 in which endorsement/order was passed by the trial court and the trial court issued NBW to accused-opposite party no.3 by his correct name but this fact could not come into the knowledge of trial court while passing the order dated 8.10.2020, therefore, in this view of the matter, both the order dated 8.10.2010 passed by trial court and the order dated 21.12.2021 passed by

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lower revisional court are hereby set-aside and the matter is remanded back to the trial court with the direction that the applicant shall file afresh application in respect of correction in the name of accused-opposite party no.3 and the trial court is directed to pass a fresh order after perusing the earlier order/endorsement dated 12.12.2018 passed in this matter.

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With the aforesaid observation/direction, the present application under Section 482 Cr.P.C. is finally disposed of.

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Order Date :- 11.7.2022 SKM

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Digitally signed by SHRAVANA KUMAR MISHRA Date: 2022.07.20 18:25:25 IST Reason: Location: High Court of Judicature at Allahabad

Gauri Shankar @ Raju Jaiswal v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

Gauri Shankar @ Raju Jaiswal v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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