TaxTMI 
TaxTMI 
TaxTMI 
Section 138 of the Negotiable Instruments Act, 1881 provides for penalty in case of dishonor of certain cheques for insufficiency of funds in the accounts. In such cases a criminal complaint may be filed against the issuer of the cheque by the recipient of the cheque. A complaint shall be without any defect or fault in its contents. Some bona fide mistakes may be curable.
In STATE OF MP. VERSUS AWADH KISHORE GUPTA & ORS. [2003 (11) TMI 584 - SUPREME COURT], the Supreme Court held that every Madhya Pradesh High Court, whether civil or criminal possesses inherent power to do right and undo the wrong in the course of administration of justice.
In ‘M.R. CHOUDHARY VERSUS. STATE OF RAJASTHAN & ANR. [2012 (3) TMI 674 - RAJASTHAN HIGH COURT] the complaint was filed about a particular cheque whereas the cheque submitted before the Trial Court was different. It is not a bona fide mistake. Therefore the accused was acquitted in this case.
In ‘Pradeep Premchandani v. Smt. Neeta Jain’ M.Cr.C. No. 2907/2007, decided on 18.09.2008, the Supreme Court has held that so far as wrong mention of 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.
In ‘OSWAL FINLEASE PRIVATE LIMITED VERSUS STATE OF RAJ. & ANR [2014 (1) TMI 1907 - RAJASTHAN HIGH COURT], the complainant wrongly indicated the cheque number and also in the affidavit he wrongly indicated the cheque number. The notice issued by the complainant bears the right cheque number. The complainant prayed to allow him to make amendments as to the right cheque number by means of an affidavit, since the mistake committed by him is a bona fide one. The said request was rejected. The respondent vehemently opposed the petition on the ground that in the complaint the wrong cheque number has been written and cognizance has been taken way back in the year 2006 thereafter affidavit in support of the complaint also bears the wrong cheque number on which cross examination has been done. Hence the Court has justified in not allowing the amendments. The Court observed that when the complainant has been cross examined, the mistake came to the notice of the complainant and application for the rectification has been moved and no person could be penalized for this bona fide mistake. The application is allowed and the judgments of the lower courts are set aside.
The Supreme Court, in the case of‘S.R. SUKUMAR VERSUS S. SUNAAD RAGHURAM [2015 (7) TMI 1260 - SUPREME COURT]has held that if the amendment sought to be made relates to a simple infirmity, which is curable by means of a formal amendment and by allowing such amendment, no prejudice would be caused to the other side, notwithstanding the fact that there is no enabling provision in Cr.P.C. for entertaining such amendment, the Court may permit such an amendment to be made.
The Supreme Court in the case of ‘N. HARIHARA KRISHNAN VERSUS J. THOMAS [2017 (9) TMI 1 - SUPREME COURT] has considered the concept of taking cognizance of offence and not offender and its inapplicability to proceedings under Section 138 of the Negotiable Instruments Act. As per Section 138 of the Negotiable Instruments Act, the statutory notice is required to be given before maintaining a complaint. 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.
In ‘Gorelal Malviya v. Vimlesh Shukla’ – 2021 (9) TMI 145 – Madhya Pradesh High Court, the present application under Section 482 of Cr.P.C. has been filed against the order dated 10/2/2021 passed by the Sessions Judge, Vidisha in Criminal Revision No. 22/2019, thereby affirming the order dated 13/9/2019 passed by the JMFC, Vidisha in SCNIA No. 468/2017, by which the application filed by the complainant under Order VI Rule 17 CPC for correction of cheque number in the complaint has been allowed.
The applicant submitted the following before the High Court-
- the respondent had filed a criminal complaint under Section 138 of the Negotiable Instruments Act alleging that in discharge of legal liability the applicant had issued a cheque No. 628892 dated 10/8/2017 of ₹ 1,50,000/-, but the same was returned back by the bank on the ground of insufficient 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.
- The Trial Magistrate allowed the application and permitted the respondent to amend the complaint and instead of cheque No. 628892, cheque No. 628895 is permitted to be substituted.
- The applicant preferred a revision which has been dismissed by the impugned order passed by the Sessions Judge, Vidisha.
- Once a criminal complaint under Section 138 of the Negotiable Instruments Act is filed, the same cannot be amended.
The High Court observed that 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. If the amendment sought to be made relates to a simple infirmity, which is curable by means of a formal amendment and by allowing such amendment, no prejudice would be caused to the other side, notwithstanding the fact that there is no enabling provision in Cr.P.C. for entertaining such amendment, the Court may permit such an amendment to be made.
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.
The High Court held that 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.
In view of the above discussions it can be inferred that the indicating wrong cheque number in a complaint under section 138 of Negotiable Instrument Act, 1881 is a curable defect and amendment can be made as to the correct cheque number.