Lekhraj Singh Kushwah vs Brahmand Tiwari

D.K. Paliwal, J.—This petition u/s 482 of Cr.P.C. is for quashing the order dated 4.8.2011 passed by the Third A.S.J., Vidisha, in Criminal Revision No. 12/11, whereby order dated 24.11.10 passed by J.M.F.C., Kurwai, in Criminal Case No. 37/2010 has been affirmed. The brief facts of the case are that the respondent has filed a private complaint u/s 138 of the Negotiable Instruments Act (in short the Act) alleging that petitioner use to do agricultural work and also owns a nursery for which the petitioner borrowed a sum of Rs. 74,000/- from the respondent and in return gave an account payee cheque of Rs. 74,400/- of the State Bank of India dated 20.3.2009. It is further alleged that when the respondent presented the cheque in Barbai branch of State Bank of India, the same was dishonoured. Thereafter, a registered notice was given to the petitioner, but the amount has not been paid. After inquiry, the complaint has been registered and during the evidence, respondent was examined and cross-examined. After completion of the cross-examination, the respondent filed an application for amendment in the complaint before the trial Court submitting that cheque No. 332534 has been wrongly mentioned in place of 332554 due to negligence of the respondent''s counsel and not because of the respondent. The learned trial Court allowed the application and ordered for carrying out necessary amendment in the complaint. Being aggrieved, the order passed by the learned trial Court was challenged before the learned A.S.J. who has affirmed the order passed by the trial Court. Being aggrieved, this petition has been filed.

It is submitted by learned counsel for the petitioner that impugned order is manifestly illegal, arbitrary and against the provisions of law. In the complaint, the respondent has mentioned the number of cheque as 332534. In the notice, Annexure P/4, the same number has been mentioned. Thus, there is a clear inconsistency in the number of cheque given by the respondent. There is no provision in the Cr.P.C. to make any amendment in the statement already given. The learned trial Court has erred in holding that if the application filed by the respondent is not allowed, the whole purpose of filing the complaint would be frustrated. The respondent has mentioned the cheque No. 332534 in the complaint whereas the actual cheque No. is 332554 for which neither the complaint has been filed nor the notice has been issued to the petitioner. Therefore, by allowing the amendment, illegality has been committed. It is prayed that order passed by the Courts below be set aside.

The learned counsel for the respondent supported the impugned order and submits that there is a typographical error which can be amended, therefore, there is no scope for any interference in the impugned orders passed by the Courts below.

The crucial question arises for consideration before this Court is where the amendment in the complaint filed u/s 138 of the Act is permissible under the law. It is not disputed that there is no express provision in the Code of Criminal Procedure to allow the amendment. The order passed by the learned A.S.J. reveals that while dismissing the revision of the petitioner, it is observed by the learned A.S.J. that during cross examination of the respondent/complainant suggestion given by the petitioner does not deny the existence of the questioned cheque, case is at defence stage, petitioner/accused has an opportunity to defend his case. Reliance has also been placed on the decision rendered in Pandit Gorelal and Another Vs. Rahul Panjabi, .

The learned counsel for the petitioner submits that this Court in the case of Kunstocom Electronics (I) Ltd. v. State of M.P. and another, 2002 (5) MPLJ 178 considering the point as to whether amendment can be made in the complaint, by placing reliance on Ashok Chaturvedi and Others Vs. Shitulh Chanchani and Another, , State of Kerala and others v. O.C.K. Kuttan, 1999(1) R.C.R. (Criminal) 831 : 1999 SCC (Cri) 304 and M. Krishnan Vs. Vijay Singh and Another, , held that there is no provision in the Code of Criminal Procedure giving right to the parties to file an application for amendment in the pleadings and give powers to lower Courts to allow the same. Again this Court in Criminal Revision No. 1041/2007 (Sunder Dev v. Yogesh) decided on 18.3.2008 has held that such amendment cannot be allowed by observing that "allowing the application at this stage of the proceeding when the matter of Section 138 of the Negotiable Instruments Act is considered, the liability as well as the compliance demand strict mandatory compliance then under the said circumstances if the benefit has accrued to the petitioner, the respondent cannot be allowed to get away with the negligence at this stage of the proceedings".

Learned counsel for the petitioner has pointed out that in the matter of Pt. Gorelal (supra), this Court has taken note of Kunstocom Electronics (I) Ltd.''s case, but still allowed the amendment referring the decision rendered in the matter of Pradeep Premchandani v. Smt. Neeta Jain M.Cr.C. No. 2907/2007) decided on 18.9.2008, wherein this Court has held that so far as wrong mention of the cheque number either in the notice or in the complaint are concerned, the Court would always have the jurisdiction to look into the fact and do complete justice in the matter. Further a decision of Rajasthan High Court rendered in the matter of Bhim Singh Vs. Kan Singh, , wherein the application for amendment of cheque number and date of information by bank on ground of typographical mistake was allowed by the trial Court, it was held that trial Court has inherent power to rectify such typographical mistakes to do justice, and a decision of Calcutta High Court in the matter of Babli Majmudar v. State of West Bengal, 2009 (1) DCR 363, wherein it has been held that wrong number on dishonour cheque is of no relevance for the drawer to pay the amount covered by such cheque, have also been referred in Pt. Gorelal''s case.

It is evident that this Court has taken a consistent view in Kunstocom Electronics (I) Ltd. and Sunder Dev (supra), that there is no provision for amendment in the Code of Criminal Procedure and the amendment in the complaint cannot be permitted, but in the case of Pt. Gorelal (supra) taking note of the aforesaid cases, it has been held that application for correction of cheque number can be allowed.

The Hon''ble Supreme Court in the matter of Sant Lal Gupta and Others Vs. Modern Co-operative Group Housing Society Ltd. and Others, observed in paras 17 and 18 as under:--

A coordinate Bench cannot comment upon the discretion exercised or judgment rendered by another coordinate Bench of the same Court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, injudicial administration precedents which enunciate the rules of law from the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate Bench must be followed.

In Rajasthan Public Service Commission and Another Vs. Harish Kumar Purohit and Others, this Court held that a Bench must follow the decision of a coordinate Bench and take the same view as has been taken earlier. The earlier decision of the coordinate Bench is binding upon any latter coordinate Bench deciding the same or similar issues. If the latter Bench wants to take a different view than that taken by the earlier Bench, the proper course is for it to refer the matter to a larger Bench.

Thus, looking to the fact that coordinate Bench of this Court has consistently held in Kunstocom Electronics (I) Ltd. and Sunder Dev (supra) which has been decided much prior to Pt. Gorelal''s case, the decision is binding upon latter coordinate Bench. Considering the facts of the instant case that not only in the pleadings of the complaint, but in the notice as well as in the affidavit filed by the respondent, number of cheque has been mentioned as 332534, in my opinion, the learned Courts below have committed illegality in allowing such amendment. In view of the above analysis, the orders passed by the Courts below are not sustainable. Hence, the petition is allowed and orders passed by the Courts below dated 24.11.2010 and 4.8.2011 are quashed.