Allowed

Gyanendra Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Home Civil Sectt. Lko. and Another

Allahabad HC7 Aug 2024A482/6966/2024

Case brief

AI extract

What is this about?

Single judge High Court allowed an application under Section 482 Cr.P.C. rejecting the learned trial court's order that dismissed an amendment application regarding the incorrect amount in a cheque bounce complaint. The court cited S.R. Sukumar to direct retrial on the amendment merits.

What did the court decide?

Impugned order dated 23.04.2024 set aside; matter remitted to trial court to pass fresh order allowing amendment within 6 weeks.

Gyanendra Kumar vs State of U.P. Thru. Prin. Secy. Home… — Cheque Dishonour | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:64044

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 6966 of 2024

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Applicant :- Gyanendra Kumar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Home Civil Sectt. Lko. And Another Counsel for Applicant :- Siddhartha Kumar,Deepti Mishra,Shreet Raj Jaiswal,Sudeep Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Abdul Moin,J.

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1 . Heard Shri Siddhartha Kumar, learned counsel for the petitioner, learned A.G.A. for the State-respondents. Despite notice having been issued to respondent No.2 and as per the Office report dated 13.09.2024 the same having been served on the respondent No.2, nobody has put in appearance on behalf of respondent No.2, as such the court proceeds to hear and decide the matter.

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2 . Under challenge is the order dated 23.04.2024, a copy of which is Annexure-1 to the petition, passed by the Presiding Officer, Special Court, N.I. Act, Lucknow whereby the learned trial court while considering an application for amendment in case filed under the provisions of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act, 1881') has rejected the amendment application. 3 . At the very outset, learned counsel for the petitioner states that although the amendment application had been filed praying for two amendments but he is only confining himself to one amendment only, which pertains to the amount of Rs.24 Lakh to be incorporated in the complaint instead of Rs.20 Lakh, which has been indicated.

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4 . Contention of the learned counsel for the petitioner is that the complaint under the provisions of Section 138 of the Act, 1881 was filed contending that a flat belonging to the complainant was proposed to be sold to the respondent therein for Rs.24 Lakh for which cheques for the aforesaid amount had also been issued but on account of typographical error figure of Rs.20 Lakh had been indicated. A copy of the said complaint is Annxure-6 to the petition. Incidentally,

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aforesaid amount of Rs.20 Lakh had also been indicated in the notice that had been sent to the respondent No.2.

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5 . Upon realising the said error, an application for amendment was filed praying for incorporation of two amendments but so far as the present controversy is concerned the amount of Rs.20 Lakh as indicated in the complaint was sought to be made as Rs.24 Lakh.

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6 . Learned trial court vide the order impugned dated 23.04.2024 has rejected the said application on the ground that no prejudice would be caused to him so far as indicating the figure of Rs.24 Lakh instead of Rs.20 Lakh in concerned and hence the instant petition.

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7 . In this regard, learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of S. R. Sukumar vs S. Sunaad Raghuram : (2015) 9 SCC 609 to contend that the Hon'ble Supreme Court had held that although there is no specific provision in the Code to amend either a complaint or petition filed under the provisions of the Code but the courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of the complaints.

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8 . It is argued that the Hon'ble Supreme Court has also held that in case of an easily curable legal infirmity, the same can be cured by means of a formal application for amendment.

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9 . The contention is that as the number of cheques and the amount upon totalling of the said cheques would amount to Rs.24 Lakh, it is only on account of typographical error that the amount of 'Rs.20 Lakh' had been typed instead of 'Rs.24 Lakh' in the complaint as well as in the notice and in the statements under Section 254 of the Cr.P.C as such upon filing of an amendment application learned trial court should have allowed the said amendment application instead of rejecting the same keeping in view the judgment of the Hon'ble Supreme Court in the case of S. R. Sukumar (supra).

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10 . It is thus prayed that the order impugned be set aside with a further direction to the learned trial court to allow the said amendment

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application.

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11 . On the other hand, learned A.G.A. has supported the impugned order.

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12 . No body has put in appearance on behalf of respondent No.2 consequently the court has gone through the record with the assistance of the learned counsel for the petitioner as well as learned A.G.A.

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13 . From the argument as raised by the learned counsel for the petitioner, it emerges that a complaint has been filed by the petitioner under the provision of Act, 1881. Subsequent thereto an application for amendment has been filed by the petitioner seeking to indicate the figure of Rs. 24 Lakh instead of Rs. 20 Lakh as has been indicated in the said complaint. Said application has been rejected by the learned trial court by means of the impugned order dated 23.04.2024.

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14 . Although from perusal of the said order, it emerges that learned trial court has not rejected the application on the ground that the said application could not be filed in accordance with law rather it has been indicated that no prejudice could be caused to the complainant even if the amendment is not permitted but then it was in the fitness of things that once the application for amendment was filed consequently learned trial court should have gone into merits as to why said application was required and could have either rejected it on merits or allowed it but rejecting on the ground that no prejudice is caused to the petitioner would be an order which is clearly not in countenanced in the eyes of the law.

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14 . The Hon'ble Supreme Court in the case of S. R. Sukumar (supra) has clearly indicated the difference between a formal amendment in order to cure an easily curable infirmity and an incurable infirmity. 15 . Considering the aforesaid, the petition is allowed . Impugned order dated 23.04.2024, a copy of which is Annexure-1 to the petition, is set aside. The matter is remitted to the learned trial court to pass a fresh order on the amendment application of the petitioner so far as it pertains to incorporating the word 'Rs.24 Lakh' instead of 'Rs.20 Lakh'

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in the complaint as well as consequential amendments in the statements under Section 254 of the Cr.P.C. keeping in the the law laid down by the Hon'ble Supreme Court in the case of S. R. Sukumar (supra).

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16 . Let such an order be passed in accordance with law after hearing all the parties concerned within a period of 6 weeks from the date of receipt of a certified copy of this order.

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Order Date :- 17.9.2024 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Gyanendra Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Home Civil Sectt. Lko. and Another

Case brief

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Gyanendra Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Home Civil Sectt. Lko. and Another

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