LEKHRAJ SINGH KUSHWAH Vs. BRAHMAND TIWARI

JUDGEMENT

(1.) THIS petition under Section 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 under Section 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.

(2.) 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.

(3.) THE crucial question arises for consideration before this Court is where the amendment in the complaint filed under Section 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 Pt. Gorelal and another v. Rahul Punjabi, : 2011(2) R.C.R. (Criminal) 882 : 2010 (2) MPJR 228.