Delhi District Court
Unknown vs M/S. Gajlakshmi Agro (India) Private ... on 11 September, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 247/2018
In the matter of:
1. M/s Maharaj Ji Educational Trust,
having its office at:
# 1, Santosh Nagar, Ghaziabad 201009.
2. Dr. P. Mahalingam,
Chairman & Managing Trustee,
M/S Maharaj Ji Educational Trust,
R/o H2, Santosh Nagar,
Ghaziabad 201009.
3. Mr. A. Uthirapathy,
Authorised signatory,
M/s Maharaj Ji Educational Trust,
having its office at:
# 1, Santosh Nagar,
Ghaziabad 201009.
4. Mr. M. Illayaraja,
Authorised Signatory,
M/s Maharaj Ji Educational Trust,
having office at:
# 1, Santosh Nagar, Ghaziabad 2010009.
CR No. 247/18
1 of 7
07.01.2017
....Petitioners.
Versus
M/s. Gajlakshmi Agro (India) Private Limited,
Through its Authorised Signatory,
Sh. Archishmaan Sharma,
having its registered office at:
Plot # K04, Basement,
Cosmo Royal Appartment,
16, Daryagang, New Delhi 110002. .....Respondent.
Date of Institution : 13.07.2018
Date of Arguments : 11.09.2018
Date of Decision : 11.09.2018
JUDGMENT
1. Vide this judgment, I shall decide revision petition filed by the petitioners against the order dated 10.07.2018 passed by Ld. MM, vide which Ld. MM has allowed the application filed by the complainant for rectification in the complaint.
2. Aggrieved by orders dated 10.07.2018, the petitioners have filed the present revision petition on the grounds that the impugned order is passed in haste and without application of mind and same has been passed on the basis of surmises and conjectures. Ld. Trial Court did not appreciate that there is no specific provision in the Criminal Procedure Code for CR No. 247/18 2 of 7 07.01.2017 amendment in the criminal complaint and the amendment in the criminal complaint cannot be permitted. Ld. Trial Court has failed to appreciate that in the present case in hand the court has already issued summons to the accused and also the accused persons had entered appearance and the said mistake was pointed out by the counsel for the accused at the time of framing of the notice and thereafter, respondent sought some time to file the application for amendment in the complaint. Ld. Trial Court has not taken into consideration the judgments relied upon by the counsel for the petitioners. It is prayed that order dated 10.07.2018 be set aside.
3. I have heard Ld. counsel for the petitioners and Ld. counsel for the respondent at length and perused the records of this court as well as of Trial Court very carefully.
4. Perusal of the Trial Court record reveals that respondent has filed complaint under Section 138 NI Act on the basis of cheque issued by the accused persons in favour of the respondent. The respondent has filed an application for rectification in the complaint due to typographical error. In the application, it is mentioned that there is typographical error at page nos. 7 & 19 of the said complaint wherein the said cheque was drawn at Vijaya Bank, Ghaziabad, Uttar Pradesh 201001 but due to typographical CR No. 247/18 3 of 7 07.01.2017 error, the name of the bank was wrongly mentioned as Punjab National Bank, G.T. Road, Ghaziabad. In para no. 3 of the application, it is mentioned that the cheque in question was drawn at Vijaya Bank, Ghaziabad, Uttar Pradesh which has been categorically mentioned at para 12 (page 5), para 13 (page 6), para 1 (page 14), para 6 (page 17) and para 7 (page 18) of the complaint and Ld. MM vide impugned order dated 10.07.2018 has allowed the application.
5. Ld. counsel for the petitioners has placed reliance on judgments titled as "Tantulal Ahirwar Vs. Krishna Agro Sales" & "Lekhraj Singh Kushwah Vs. Brahmand Tiwari". Both the judgments are passed by Hon'ble High Court of Madhya Pradesh. I have perused the judgments with utmost regard.
Ld. counsel for the respondent has placed reliance on judgment titled as "Maan Agro Centre Vs. Eid Parry (India) Ltd. and Anr." wherein, it is held that "in complaint filed under section 138 N.I. Act, accused described as "Maan Agro Centre through its proprietor". Complainant subsequently moving application for inserting name of the proprietor in the cause title of the complaint. Proprietorship concern by itself not being a legal entity apart from its proprietor, order permitting CR No. 247/18 4 of 7 07.01.2017 the complainant to insert name of the proprietor in the cause title did not result in any prejudice to the accused. Complaint could not be said to be defective."
Ld. counsel for the respondent has also placed reliance on judgment titled as "S.R. Sukumar Vs. S. Sunaad Raghuram" wherein, it is held that "insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery" wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended." In this judgment, it is also held that "What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by CR No. 247/18 5 of 7 07.01.2017 allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint."
Ld. counsel for the respondent has also placed reliance on judgment titled as "Bhim Singh Vs. Kan Singh" 2003 SCC Online Raj 326 wherein, it is held that "it is an established proposition of law that court of justice must possess inherent powers, apart from the express provisions of law, which are necessary to their existence and the proper discharge of duties imposed upon them by law. The Criminal Procedure Code or for the matter of that no procedural law is ever exhaustive and in cases where circumstances required it, the courts have acted on the assumption that they possess inherent powers (as of right) to do justice for which they really exist. At the same time it must be remembered that a court has no inherent power to do that which is CR No. 247/18 6 of 7 07.01.2017 prohibited by the Code."
7. In view of the above discussions, I am of the view that there is no illegality or infirmity in the order dated 10.07.2018. Ld. Trial Court has passed a reasoned order and rightly allowed the amendment as in other paras of the complaint the complainant has rightly mentioned the name of the bank. The revision petition filed by the petitioners is without any merits and same is hereby dismissed.
Trial Court record be sent back along with copy of judgment. Revision file be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 11.09.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
CR No. 247/18
7 of 7
07.01.2017