Partly allowed

M/S Mahi International v. State of Raj and Anr.

Rajasthan HC3 May 2019CRLMP/244/2018

Case brief

AI extract

What is this about?

A criminal miscellaneous petition against an order allowing complaint amendment and rejecting personal appearance exemption. The High Court allowed the amendment for minor errors but partially allowed the prayer for exemption from personal presence, requiring a deposit as a condition.

What did the court decide?

Amendment to complaint allowed; exemption from personal appearance granted subject to undertaking and deposit of 20% cheque amount.

M/S Mahi International Vs State of Raj and Anr. — Cheque Dishonour | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 244/2018

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M/s Mahi International Through Proprietor Shri Ashwani Khandelwal S/o Shri Ghanshyam Khandelwal, Office/Residence J- 126, Ashok Chowk, Adarsh Nagar, Jaipur, At Present R/o Plot No. 9, Sai Complex, Naika Waddo, Calangute, Bardaz, Goa.

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----Petitioner

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Versus

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State Of Rajasthan Through P.p.

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J.M. International Proprietor Shri Hariom Agarwal S/o Shri Ramdas Agarwal, Office Shop No. 210, Suraj Bhawan, Gurjar Wali Gali, Purohit Ji Ka Katla, Johari Bazar, Jaipur. Complainant-Respondents

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For Petitioner(s) : Mr. M.P. Singh For Complainant(s) : Mr. Sudhir Jain For State : Mr. Arvind Bhadhu, PP

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HON'BLE MR. JUSTICE PANKAJ BHANDARI

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Judgment / Order

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03/05/2019

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Petitioner has preferred this Criminal Miscellaneous Petition seeking quashing of order dated 21.11.2017 passed by Special Metropolitan Magistrate (N.I. Act Cases) No.10, Jaipur Metropolitan, whereby application dated 16.07.2016 for making amendment in the complaint filed by the complainant has been allowed and application for exemption in personal appearance filed by the petitioner has been rejected.

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It is contended by counsel for the petitioner that the Court has erred in allowing the amendment application as amendment of cause of action and jurisdiction cannot be changed once cognizance has been taken by the Court.

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(2 of 4)

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[CRLMP-244/2018]

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With regard to personal appearance, it is contended that petitioner is a resident of Goa. His presence is not required on each date. He would mark his presence as and when required by the Court.

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Counsel for the petitioner has placed reliance on (2001) 7 Supreme Court Cases 401 “ Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd.& Ors. ”

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It is contended that after amendment Court will cease to have the jurisdiction as the jurisdiction falls in a different Court. 6. Counsel for the complainant has opposed the present Criminal Miscellaneous Petition. His contention is that typographical error occurred in the complaint which has rightly been corrected by the Court.

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Counsel for the complainant in this regard has placed reliance on 2004 (2) R.C.R. (Criminal) 22 “ Bhim Singh vs. Kan Singh” & (2015) 9 Supreme Court Cases 609, “ S.R. Sukumar vs. Sunaad Raghuram . ”

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I have considered the contentions.

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As far as prayer for amendment is concerned, Apex Court in “ S.R. Sukumar vs. Sunaad Raghuram ” (supra) has held that although there is no specific provision in Criminal Procedure Code to amend a complaint or a petition filed under Cr.P.C. if amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment such infirmity can be cured.

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The amendment sought for by the respondent was change of Bank name from UCO Bank, Branch Johari Bazar to SBBJ Bank, Branch Chaura Rasta, Jaipur. Amendment was also sought with regard to the typographical errors in the dates mentioned in the

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(3 of 4)

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[CRLMP-244/2018]

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complaint. Court below has allowed the application for amendment of the complaint. Admittedly, from the cheque, return memo which are available on record the bank details and the date of dishonour can be ascertained. Any typographical error can be corrected and the Court below has not committed illegality in allowing the application filed by the complainant for amendment of the complaint. To that extent, I do not find any force in the present miscellaneous petition.

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As far as rejection of application for permanent exemption is concerned, in view of the fact that petitioner is resident of Goa. The Apex Court in “ Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd.& Ors.” (supra) while dealing with a case under the Negotiable Instruments Act held that if personal appearance may result in enormous hardship and cost to an accused, the Court may dispense with his personal attendance either throughout or at any particular stage of the proceedings, after taking an undertaking from him that he would not dispute his identity as the particular accused in the case and that a counsel on his behalf would be present in Court and he would have no objection in taking evidence in his absence.

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Apex Court has further held that main concern of the Court is administration of criminal justice and for that purpose proceedings should register progress. 13. Application filed by the petitioner ought to have been allowed, hence the same is allowed, subject to petitioner giving an undertaking before the Court below that he would not dispute his identity as the particular accused in the case and that a counsel on his behalf would be present in Court and he would have no objection in taking evidence in his absence. Petitioner should

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(4 of 4)

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[CRLMP-244/2018]

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further undertake that he would appear in the Court as and when Court requires his presence. Further to ensure that the mattter which is of year 2016 is not delayed further, the petitioner should deposit 20 percent of the cheque amount with the Court below which shall be kept in a fixed deposit by the Court. In case petitioner does not appear before the Court when he is called to appear, said amount shall stand forfeited and would be paid to the complainant.

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As far as jurisdiction of the Court is concerned, it is for the Court concerned to see whether it has jurisdiction and transfer the case to the Court having jurisdiction, if Court is not having the required jurisdiction.

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The present Criminal Miscellaneous Petition is accordingly partly allowed. Stay application stands disposed.

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(PANKAJ BHANDARI),J

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Amit Kumar/25

M/S Mahi International v. State of Raj and Anr.

Case brief

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M/S Mahi International v. State of Raj and Anr.

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