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TMI Blog2023 (1) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... he matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so.' Case in hand relates to proceedings under Section 138 of NI Act, 1881. The proceedings under Section 138 of NI Act are quasi criminal in nature and intent is to recover cheque amount by way of summary proceedings. Hon ble Supreme Court in many cases has adverted with nature of proceedings under Section 138 of NI Act. A two judge bench of Hon ble Supreme Court in LAFARGE AGGREGATES CONCRETE INDIA P. LTD. VERSUS SUKARSH AZAD ANR. [ 2013 (9) TMI 1188 - SUPREME COURT ], dealt with an order where High Court had ex-parte set aside complaint filed under Section 138 of NI Act on the ground that accused offered to pay cheque amount, however, complaint refused to accept and insisted for pursuing the trial. In the case in hand, there is no dispute with respect to running number mentioned on the cheque in question, date in terms of day and month as well amount mentioned therein. As per petitioner, year 2010 instead of 2012 has been mentioned in all the documents i.e. notice, complaint, notice of requisition etc. The petitioner wants to substitute year 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee cheque No.732966 dated 22.07.2012. The cheque was presented by the petitioner which came to be returned on account of insufficient balance . The petitioner served legal notice upon the respondent which was followed by afore-stated complaint under Section 138 of NI Act read with Section 420 IPC. In the complaint, the date of cheque was mentioned as 22.07.2010 whereas as per the petitioner, the correct date of cheque is 22.07.2012. The petitioner moved an application seeking amendment of the complaint. Learned Magistrate vide impugned order dated 13.07.2018 has dismissed the application of the petitioner on the ground that there is same averments qua date of cheque in different documents including preliminary evidence tendered by the complainant. The typographical mistake can occur once and not repeatedly in all the documents. The cross-examination of the complainant had already concluded, thus, the complainant cannot be allowed to fill up the lacuna that has come in his notice at this belated stage. 3. Learned counsel for the petitioner in support of his contention that amendment of complaint is permissible cited judgment of Bombay High Court in Anand Vs. Step in Computer shopee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 391 endows power upon appellate court to take additional evidence. Sections 216, 311, 319 and 391 read as: 216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry . From the conspectus of above quoted sections, it can be gleaned that intent of all the above quoted Sections is to uphold the majesty of justice and secure the ends of justice. Neither innocent person should be punished nor culprit should be let scoot free on the technical grounds. The procedure cannot be mistress of justice but it is made to assist and achieve the intent of substantive law. 10. A Constitution bench of the Supreme Court Union of India v. Tulsiram Patel, (1985) 3 SCC 398 while dealing with omission to mention the relevant clause of the second proviso or the relevant service rules in the impugned order has held that order cannot be invalidated if power exists and wrong provision is invoked. Hon ble Court has held: 125. Some of the orders impugned before us refer only to one or the other of the three clauses of the second proviso to Article 311(2) for dispensing with an inquiry without referring to the relevant service rule, some refer both to a clause of the second proviso and the relevant service rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. It may be mentioned that in none of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so. 11. Case in hand relates to proceedings under Section 138 of NI Act, 1881. The proceedings under Section 138 of NI Act are quasi criminal in nature and intent is to recover cheque amount by way of summary proceedings. Hon ble Supreme Court in many cases has adverted with nature of proceedings under Section 138 of NI Act. 11.1 A two judge bench of Hon ble Supreme Court in Lafarge Aggregates Concrete (India) (P) Ltd. v. Sukarsh Azad (2014) 13 SCC 779, dealt with an order where High Court had ex-parte set aside complaint filed under Section 138 of NI Act on the ground that accused offered to pay cheque amount, however, complaint refused to accept and insisted for pursuing the trial. The Apex Court describing the hybrid nature of provisions of NI Act has held: 6. The respondents have agreed to pay the said amount but the appellant has refused to accept the payment and insisted that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory presumption would be of dishonest intention exposing to criminal liability. *** 10. However, in the interest of equity, justice and fair play, we deem it appropriate to direct the respondents to make the payment to the appellant by issuing a demand draft in their favour for a sum of Rs 5 lakhs, which would be treated as an overall amount including interest and compensation towards the cheque for which stop-payment instructions had been issued. If the same is not acceptable to the appellant, it is their choice but that would not allow them to prosecute the respondents herein in pursuance to the complaint which they have lodged implicating these two respondents. 11.2 A two judge bench of Apex Court while dealing with a case where High Court dismissed petition on the ground that complainant is not ready to settle the matter though accused was ready to pay cheque amount in Meters Instruments (P) Ltd.v.Kanchan Mehta (2018) 1 SCC 560, noticed object of Section 138 and the amendments made to Chapter XVII. The Apex Court has held that court can close the trial and further summarised the case law as follows: 7. This Court has noted that the object of the statute was to facilitate smooth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 258 CrPC will apply and the court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. 18.2.The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court. 18.3. Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. 18.4. Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditiously and cheaply. We have already seen how it is the victim alone who can file the complaint which ordinarily culminates in the payment of fine as compensation which may extend to twice the amount of the cheque which would include the amount of the cheque and the interest and costs thereupon. Given our analysis of Chapter XVII of the Negotiable Instruments Act together with the amendments made thereto and the case law cited hereinabove, it is clear that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 IBC, amount to a proceeding within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding. xxxxxxxxxx 84.Clearly, therefore, given the hybrid nature of a civil contempt proceeding, described as quasi- criminal by several judgments of this Court, there is nothing wrong with the same appellation quasi- criminal being applied to a Section 138 proceeding for the reasons given by us on an analysis of Chapter XVII of the Negotiable Instruments Act. We, therefore, reject the learned Additional Solicitor General's strenuous argument that the appellation qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stand raised by the accused applicant, does not reflect in the cross examination of complainant's witness Prithviraj. The defense in the reply notice has conveniently been abandoned. The applicant / accused did not dispute his signature on the cheque. If, indeed, the cheque was not of his account, there was no reason to get it established through Bank witness. The typographical error in the cheque will not mitigate the situation as the accused, as stated earlier, did not dispute his signature on the cheque. Such mistake cannot be said to be material as the amount covered by the disputed cheque is correctly recorded in the statutory notice. 13.1 Rajasthan High Court in Bhim Singh case (supra) while dealing with error regarding number and date of cheque has held: 4. Before proceeding further, it may be clarified first whether the mistakes as pointed out by the complainant petitioner in the complaint were typographical mistakes or not and for that Ex.P/1, which is a cheque, may be referred to where the cheque number has been clearly mentioned as 343336 and in Ex.P/2, which is a letter which was issued by the Bank to the petitioner complainant, the date has been clearly mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition and the same is accordingly dismissed. 13.3 Madhya Pradesh High Court in Pandi Gorelal and another (supra) while adverting mistake of cheque number in the notice, complaint and statement has held: 14. From perusal of record, it is evident that right from beginning in the notice, in complaint and also in the statement in support of the complaint the respondent has alleged the Cheque No. 739949 while in fact it was 739940, which shows the complete carelessness on the part of the respondent. However, keeping in view the law laid by this Court whereby this Court has allowed the application for amendment which has caused due to typographical error, this Court is of the view that no illegality has been committed by the learned trial Court in allowing the application filed by the respondent. 13.4 A co-ordinate bench of this court in Kumar Rubber Industries, Kapurthala (supra) while dealing with amendment qua cheque number has held: 49. Relying upon this decision, the learned counsel for the 1st respondent/complainant contends that, that is why the 1st respondent/complainant has filed a petition for supplementing the complaint and for bringing forth the correct numbers of che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, we find that not only the complaint is defective, but also there is total non-application of mind by the learned Magistrate also. This is not a mere technical defect or a mere misdiscreption of the parties which could be allowed to be amended. The cheques are the very basis of foundation of the complaint. So, when the very foundation has not been properly laid by giving the correct numbers of the cheques, the complaint itself becomes not maintainable. Such a defect which goes to the root of the matter, cannot be allowed to be amended and the complainant cannot be allowed to supplement the complaint by giving the numbers of fresh cheques as the basis of the complaint. The complaint cannot thus be made to suit the evidence introduced. Therefore, in my view, the complaint has to fail and to be quashed on that account. 13.5 Bombay High Court in Neeraj Cement Structurals Pvt. Ltd (supra) while dealing with correction of name of bank has held: 4. There can be no doubt that an amendment of the nature sought by the respondent No. 1 herein cannot be permitted. The complainant had averred in his complaint that the cheques were drawn on a particular bank. The verification has also been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents by 2012 mentioned on the cheque in question. The respondent is opposing correction/amendment of year on the ground that amendment at this belated stage of trial is not permissible, it would amount to filling up of lacuna and mistake could have be in one document whereas petitioner in all the documents has mentioned year 2010. 15. It is matter of common knowledge that nowadays, documents are prepared on computer and once a file narrating fact and figures is prepared, its contents are copied and pasted in all subsequent documents. Once a mistake is committed in one document, it carries in many subsequent documents till it is noticed. Nobody can claim benefit of his or any other person s mistake. As per Section 216 of Cr.P.C. court may alter or amend charge, as per Section 311 of Cr. P.C. court may permit re-calling or re-examination of witnesses, as per Section 319 of Cr.P.C. court may summon any person as accused though he is not made accused in police report and as per Section 391 of Cr.P.C. even appellate court may permit to lead additional evidence. As per Section 138- 141 of NI Act, 1881 read with above cited judgments, the proceedings are quasi criminal in nature and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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