This writ petition has been filed by the petitioner with a prayer to issue a writ, order or direction in the nature of certiorari to quash the order dated 2.3.2013 passed by Special Judge / Additional Sessions Judge, Ghaziabad in Criminal Revision No.366 of 2012 (Rajeev Das Gupta Vs. Smt. Lajwanti) whereby the lower revisional Court has allowed the revision and set-aside the order passed by the trial Court in which a correction application had been allowed by the trial Court.
The brief facts of the case are as follows :
A criminal complaint under section 138 of the Negotiable Instrument Act was filed by the complainant (petitioner) against the respondent no.2 before the concerned Magistrate. The concerned Magistrate, after affording opportunity to lead the evidence and hearing the complainant, summoned the respondent no.2 to face the trial. During pendency of the trial, an application was moved on behalf of the complainant with the averments that he had filed two complaints including the present one on the same day and inadvertently due to typing mistake, the same cheque numbers have been mentioned in this matter as has been mentioned in the other complaint. Therefore, prayer was made to allow the application to correct the mistake to mention the actual number of the cheques.
Objection was invited and after hearing the parties, the trial Court allowed the application observing that the complainant has filed cheque nos. 695346, 695345 and 695344 on record, but in the complaint, he has mentioned the cheque no.333948 and 333939. It has also been mentioned that complainant has filed another complaint no.3115 of 2010, which is pending in which the chqeue nos. 333948 and 333939 have been filed. Thus, it was observed that there is a typing mistake, therefore, to decide the complaint on merit, amendment is necessary. Feeling aggrieved with the said order, opposite party no.2 filed a criminal revision before the Sessions Judge, Ghaziabad being Criminal Revision No.366 of 2012 (Rajeev Das Gupta Vs. Smt. Lajwanti). The Special Judge (E.C. Act) / Addl. Sessions Judge, Ghaziabad vide order dated 2.3.2013 allowed the criminal revision setting aside the order passed by the trial Court observing that there is no any provision in the Cr.P.C. to amend the evidence.
I have heard Sri Rajesh Kumar Mishra, learned counsel for the petitioner, Sri Y.K. Sinha, learned counsel for the respondent no.2, learned A.G.A. for the State and perused the record.
It is submitted by learned counsel for the petitioner that proceedings under Section 138 of the Negotiable Instrument Act are of quasi-civil nature and amendment application moved before the trial Court was not an amendment application in strict sense, but it was simply a correction application. The cheques, which have been filed on record, were sought to be mentioned in the complaint. Complainant had filed two complaints on the same day and due to typing mistake, same number got typed in both the complaints, thus, correction needed.
Learned counsel for the petitioner has placed reliance on the law laid down in the matter of Janki Vashdeo Bojwani Vs. Indusind Bank Ltd. (2005) 2 SCC 217.
Learned counsel for the respondent no.2 as well as learned A.G.A. have argued that observation recorded by the revisional Court is in accordance with law. No amendment is permissible in the criminal matter. It was also argued that affidavit in support of the complaint cannot be amended, therefore, if complaint is amended, the summoning order would become unsustainable. Thus, prayer has been made to dismiss the petition.
I have considered the rival submissions raised by learned counsel for both the parties.
It is true that there is no any specific provision regarding amendment in the criminal matters except to the provisions under Section 362 Cr.P.C., which are as follows :
"Section 362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
The main question to consider in this matter is that whether application moved in the trial Court to correct some facts amounts to an amendment application, as is denoted in the Civil Procedure Code. Secondly, whether criminal Court has authority to correct such type of mistake or not?
Merely mentioning the word amendment in the heading of the application, will not in all purposes shall be deemed as amendment application moved under Civil Procedure Code. The contents of the application as a whole shall be taken into consideration.
As far as second question is concerned, provisions of Section 362 Cr.P.C. are applicable only after passing an order or judgment. There is no any express prohibition under the Criminal Procedure Code to correct the mistake during course of trial or any other proceeding. It may be mentioned here that in the absence of any prohibition in the Code, express or implied, it is open to the Court to allow such type of correction application because every criminal Court has inherent power to pass such order, as it follows that exercise of such inherent powers can be done for settling right the wrong.
The paramount rule of interpretation, which overrides the others is that the Statute is to be expounded according to the intent of the think that made it. Therefore, even if there is any lacuna in the Statute, then also it is the obligation on the Court to give effect to the will of the Legislature by a judicial order.
In the present matter, notice annexed with the complaint pertains the same cheque numbers as has been sought to be corrected and the cheques, which are actually the subject matter in the complaint, have been filed and were on record while summoning order was passed. When correction application was filed along with the affidavit, then observation recorded by the revisional Court that the affidavit filed along with the complaint will remain unchanged will not make any difference at this stage.
If two complaints had been filed by the same complainant on the very same day and inadvertently or due to typing mistake in both the complaints the same cheque numbers have been mentioned, this Court is of the view that the trial Court has rightly allowed the correction application. The order passed by the learned Magistrate will not amount to a correction or modification in the order or judgment. If the revisional Court order is sustained, certainly a miscarriage of justice would be done.
Thus, this Court is of the view that there are sufficient grounds to exercise the extra ordinary jurisdiction under Article 226 of the Constitution of India and to set-aside the order passed by the lower revisional Court.
For the reasons mentioned above, the writ petition is allowed and the order dated 2.3.2013 passed by Special Judge / Additional Sessions Judge, Ghaziabad in Criminal Revision No.366 of 2012 (Rajeev Das Gupta Vs. Smt. Lajwanti) is hereby set-aside and trial Court is hereby directed to proceed with the trial in accordance with law.
Order date :- 21.11.2014.
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