Dismissed

Chandrasekhar Patro v. The State Of Jharkhand And Anr.

Jharkhand HC3 Sept 2015Cr.M.P./2956/2014

Case brief

AI extract

What is this about?

Disposal of a Criminal M.P. whereby the Jharkhand High Court dismissed a petition seeking to quash a lower court order that permitted correction of a typographical error regarding a cheque date in a Section 138 NI Act complaint.

What did the court decide?

Cr.M.P. stands dismissed; liberty granted to cross-examine witnesses and to re-record statement under Section 313 Cr.P.C.; interim order vacated.

Chandrasekhar Patro Vs The State Of Jharkhand And Anr. — Cheque Dishonour | Jharkhand HC (2015)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. M. P. No. 2956 of 2014

Chandrasekhar Patro

... ... Petitioner

-V e r s u s -

The State of Jharkhand

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Prasenjit Nayak

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... ... Opposite Parties

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CORAM: - HON’BLE MR. JUSTICE D. N. UPADHYAY

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For the Petitioner : Mr. P.P.. Roy, Sr. Advocate. Mr. Pandey Ashok Roy, Advocate. For the State: : Mr. Amresh Kumar, APP. For the O.P. No. 2 : In person.

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C.A.V. On 06/08/2015

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PRONOUNCED ON 03/09/2015

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D.N. Upadhyay, J. Heard the parties.

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This Cr.M.P. has been filed for quashing the Order dated 20.11.2014, passed by Shri S.B. Sharma, learned Judicial Magistrate, Ranchi in connection with Complaint Case No. 1335 of 2011 whereby the petitions dated 20.12.2011 and 16.06.2014 filed by the complainant/ opposite party have been allowed and necessary amendment sought for have been permitted to be carried out.

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The facts in brief is that the complainant Prasenjit Nayak filed Complaint Case No. 1335/2011 against the petitioner Chandrasekhar Patro alleging therein that the accused in discharge of the debt as part payment issued a Cheque bearing No. 554047, dated 20.12.2011 drawn on Oriental Bank of Commerce, Kutchery Road, Ranchi for a sum of Rs.9,47,657/- in favour of the complainant. On presentation of the cheque by the complainant for its encashment, aforesaid cheque stood dishonoured due to insufficient fund vide Memo Dated 16.06.2011. On 12.07.2011, Notice was sent to the accused through Lawyer by the complainant demanding payment of the aforesaid cheque amount within 15 days and the notice was sent through registered post. When the accused failed to make payment even after issuance of notice, Complaint Case No. 1335 of 2011 was filed. After enquiry, cognizance under Section 138 of the Negotiable Instrument Act, has been taken and the matter proceeded ahead.

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The complainant on the date of his examination on S.A. had noticed that inadvertently the date mentioned on the cheque has wrongly been typed in the complaint petition. Instead of Cheque No. 554047, Dated 20.12.2010, it is mentioned as Cheque No.

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554047, Dated 20.12.2011. This mistake also occurred in the Legal Notice issued.

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The complainant immediately filed a petition on 16.06.2014 seeking permission to correct the typographical mistake appearing in the notice as well as in the complaint but it was directed to be kept on record. The complainant filed another petition on 28.07.2014 for necessary correction in the complaint petition, in the notice and also in the statement recorded under Section 313 Cr.P.C. The learned Magistrate, vide order dated 20.11.2014, allowed the prayer made by the complainant and permitted to do necessary correction i.e. Cheque dated 20.12.2010 instead of 20.12.2011.

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Being aggrieved by and dissatisfied by the Order dated 20.11.2014 passed in Complaint Case No. 1335 of 2011 accused preferred present Cr.M.P. under Section 482 Cr.P.C. to quash and set aside the impugned order.

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It is argued that there is no provision in Cr.P.C. to make any amendment in the pleading or the documents already filed. He has placed reliance on the Judgment passed by the Madhya Pradesh High Court in the case of Lekhraj Singh Kushwah Vs. Brahmanand Tiwari reported in 2014(1) Crimes 182 (M.P.) . It was submitted that if the amendment allowed by the Trial Court is carried out, it would change the pleading and that will cause prejudice to the accused in his defence.

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The similar fact was raised before the Hon'ble M.P. High Court and the Hon'ble Court has passed order by observing that there is no provision of amendment in the Criminal Procedure Code.

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On the other hand counsel appearing for the complainant/ opposite party has submitted that it was purely a typographical mistake occurred in the legal notice as well as in the complaint. It is apparent from the aforesaid Cheque that it was issued on 20.12.2010, it was presented for its encashment before the Bank and returned with memo dated 16.06.2011. Had the cheque been issued on 20.12.2011, it should not have been entertained six months prior to the date of issuance for its encashment. Had it been done so, the reason for return of the cheque should have been indicated otherwise in the return memo. From the documents available on record it is very clear that the aforesaid cheque no. 554047 was issued on 20.12.2010. Inadvertantly the date has wrongly been typed as 20.12.2011 instead of 20.12.2010 and the same mistake occurred in the legal notice. Since aforesaid mistake was appearing in the

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documents placed before trial court that also occurred in the statement of the accused recorded under Section 313 Cr.P.C.. The complainant has relied on the Judgment in the case of Bhim Singh

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Vs. Kan Singh reported in (2004) 2 DCR 158 .

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Having heard rival submission and after perusing the complaint and other documents available before me, it is very clear that Cheque No. 554047, dated 20.12.2010 is the subject matter of the present complaint, issuance of which has also not been denied by the complainant/ petitioner. The typographical mistake occurred in the legal notice as well as in the complaint is apparent. The complainant in his SA has clearly pointed out the said typographical mistake and also filed a petition which was decided on 20.11.2014 along with another petition filed on 28.07.2014. To me, the observation of Rajasthan High Court is acceptable. Para-13 of the said Judgment reads as under:-

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“13. It is an established proposition of law that court of justice must possess inherent powers apart from the express provision 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.”

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I am also of the view that an aggrieved comes before the Court for seeking justice or for redressal of his grievance. It is true that Criminal Procedure Code does not contain any provision for amendment in the pleading but then typographical mistake which is apparent, if causing injustice, that should be permitted to be rectified if such rectification does not change nature of the dispute or litigation.

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I do not find that correction in the plaint as well as legal notice shall cause any prejudice to the accused/ petitioner because he has not disputed issuance of said Cheque in favour of the complainant. In that view of the matter and also for the ends of justice, I do not feel inclined to make any interference in the order impugned.

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Accordingly, this Cr.M.P. stands dismissed giving liberty to the accused/ petitioner to cross examine the witnesses if he so wish and the trial court shall also be at liberty to re-record statement of accused under Section 313 Cr.P.C.

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Interim order dated 18.05.2015 stands vacated and the trial court shall proceed further in accordance with law.

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Chandrasekhar Patro v. The State Of Jharkhand And Anr.

Case brief

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Chandrasekhar Patro v. The State Of Jharkhand And Anr.

Case brief

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