2021 (9) TMI 145 - HC - Indian Laws

Dishonor of cheque - insufficiency of funds - during the pendency of the complaint, an application under Order VI Rule 17 CPC was filed for amendment in the complaint on the ground that by mistake cheque No. 628895 has been wrongly mentioned as 628892 - HELD THAT - The undisputed fact is that alongwith the complaint, the respondent has filed the cheque No. 628895. Even in the statutory notice the cheque number was mentioned as 628895, however, in the complaint, the cheque number was mentioned as 628892. In the present case, the respondent/complainant has filed the cheque No. 628895. The statutory notice was also issued in respect of cheque No. 628895, however, by mistake it appears that in the complaint cheque number was mentioned as 628892. Under these circumstances, this Court is of the considered opinion that the mistake is a simple infirmity, which is curable by means of a formal amendment, and by allowing such an amendment, no prejudice would be caused to the applicant, as he was served with a statutory notice giving the correct cheque number, i.e. 628895. If a notice is given on the basis of incorrect cheque number, then the entire foundation will fall and the complainant cannot maintain his complaint on the basis of incorrect cheque number. However, in the present case, it is not the case of the applicant that the statutory notice was issued to him by mentioning incorrect cheque number. The Magistrate in its order has also mentioned that the cheque number mentioned in the cheque, written memo and statutory notice is 628895, whereas only in the complaint the cheque number has been mentioned as 628892, therefore, it is a formal infirmity. Since the defect was a formal in nature without affecting the maintainability of the complaint, therefore, this Court is of the considered opinion that no jurisdictional error was committed by the Courts below by allowing the application filed under Order VI Rule 17 CPC. Application dismissed.

Summary

Issues:
Application under Section 482 of Cr.P.C. against order allowing amendment in complaint under Order VI Rule 17 CPC for correction of cheque number.

Analysis:
The judgment addresses the issue of amending a criminal complaint under Section 138 of the Negotiable Instruments Act. The applicant had issued a cheque which was returned due to insufficient funds, leading to a complaint. The complainant sought to correct the cheque number from 628892 to 628895 through an application under Order VI Rule 17 CPC. The Trial Magistrate allowed the amendment, which was affirmed by the Sessions Judge, leading to the applicant's revision application.

The counsel for the applicant argued that once a complaint is filed under Section 138, it cannot be amended, citing a previous court order. However, the Court referred to a Supreme Court case stating that if the amendment is a simple infirmity curable by formal amendment and causes no prejudice, it can be allowed even without a specific provision in Cr.P.C. In this case, the correct cheque number was mentioned in the statutory notice and the cheque itself, making the amendment a formal infirmity.

The Court distinguished a previous case where the statutory notice had an incorrect cheque number, emphasizing the importance of correct notice for maintaining a complaint under Section 138. Since the statutory notice in this case had the correct number, the error in the complaint was deemed a formal infirmity that did not affect the complaint's maintainability. The Court held that no jurisdictional error was committed by allowing the amendment under Order VI Rule 17 CPC.

In conclusion, the Court dismissed the application, finding that the defect in the complaint was formal in nature and did not impact the complaint's maintainability under Section 138 of the Negotiable Instruments Act. The judgment underscores the importance of correct statutory notices in maintaining complaints under the Act and the discretion of the Court to allow formal amendments that do not prejudice the parties involved.