M. Ashok vs H. Ramegowda

A.S. Pachhapure

The appellant has challenged the order of acquittal of the respondent for the offence u/s 138 of the Negotiable Instruments Act: (hereinafter called as "the Act" for short) on a trial held by the Addl. Chief Metropolitan Magistrate, Bangalore City.

The facts reveal that the appellant and the respondent were working in Motor Industries Company and known to each other for a long time. The respondent is said to have approached the appellant for a loan of Rs. 8,00,000/- in the month of March 2003 and the appellant is said to have collected the amount from his friends and relatives and advanced the loan. The respondent did not repay the amount as agreed and on pursuation, he issued a cheque for Rs. 8,00,000/- on 10.7.2003 bearing No. 137134 dated 10-7-2003. The said cheque was presented for encashment and it returned with an endorsement of insufficient funds. The appellant issued the notice. There was no compliance. Hence, under these circumstances, a complaint came to be filed by the appellant before the Court below u/s 200 Cr.P.C. to initiate action against the respondent for the offence punishable u/s 138 of the Act During the trial, the appellant was examined as PW. 1 and he got marked the documents Exs.P.1 to P.9. The statement of the respondent was recorded u/s 313 Cr.P.C. He has taken the defense of total denial. The respondent was examined as DW.1 and three other witnesses DWs 2 to 4 were examined. In their evidence, he got marked the documents Exs.D.1 to D.5. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record, acquitted the respondent for the aforesaid charges and aggrieved by the order, the present appeal has been filed.

I have heard the learned counsel for both the parties.

The point that arise for my consideration is:

Whether the appellant: has made out any grounds to warrant interference in the order of acquittal passed by the court below ?

In the complaint, the cheque number mentioned as 137134 dated 10-07-2003 drawn on Malleswaram Cooperative Bank Limited, whereas in the notice that: has been issued by the appellant u/s 138-3, there is no mention of the cheque number. But as could be seen from the cheque Ex.P.2, the number is 137136 dated 10-07-2003. So, there was discrepancy in mentioning the cheque number in the complaint and it is in these circumstances that the appellant had filed an application before the Trial Court u/s 311 Cr.P.C. to recall the appellant for the purpose of correcting the mistake occurred in the evidence that has been recorded. The said application came to be rejected on 11.1.2005. It is the submission of the learned counsel for the respondent that such a correction cannot be granted as even much earlier to the complaint, the same number was mentioned in Ex.D.2 and therefore, it is his submission that when consistently the number of the cheque is the same in Ex.D.2 and also in the complaint filed by the appellant, he submits that the law does not permit such corrections. On this aspect of the matter, he has relied upon the decision of the High Court of Punjab and Haryana reported in 2003 (4) CRI LJ 664 (Kumar Rubber Industries Kapurthala vs. Sohan Lal). The facts reveal that the cheques mentioned in the complaint and introduced into the evidence did not bear the same numbers and the High Court held that such a defect goes to the root of the matter and can't be allowed to supplement the complaint by giving the numbers of fresh cheques as the basis of the complaint. In these circumstances, the complaint was quashed by the High Court.

At the same time, the learned counsel for the appellant has placed reliance on the decision of High Court of Rajasthan reported in II (2004) BC 475 (Bhim Singh v. Kan Singh) wherein there were typographical mistakes in the cheques and the High Court held that it could be rectified by the Court and corrected by the High Court under inherent powers. He also placed reliance on the decision of the High Court of Andhra. Pradesh reported in Kavuri Suwarna Bala Sundaram Vs. Karnati Poorna Chandra Rao and Another, . The number of the cheque dishonoured was correctly mentioned in the demand notice and it was held that the complaint cannot be quashed merely on ground that wrong number of dishonoured cheque is mentioned in the notice. Any how, as could be seen from the allegations in the complaint and so also the cheque Ex.P.2 that has been produced, the number mentioned is different''. It may be a typographical mistake while drafting the petition or there may be some other reasons for the mistake that has been occurred. But when the appellant approached the Trial Court with a request to offer his explanation for the mistake crept into the evidence, it ought to have granted an opportunity to the appellant to rectify the mistake or offer his explanation. Thereby, the Trial Court has committed an error in rejecting the application filed by the appellant u/s 311 Cr.P.C.

Though there is no necessity to go into the merits of the appeal, the financial capacity of the appellant was challenged and the appellant though stated in the complaint and the affidavit that he has collected Rs. 8,00.000/- from his relatives and friends, did not examine any one of them. But any how, he relied upon Ex.P.9 the copy of the sale deed, wherein, there is reference of the fact that the appellant had taken an amount of Rs. 4,50,000/- from DW.4 examined by the respondent prior to the loan transaction. So to some extent there appears to be material about the collection of the amount to advance the loan. In particular, it is for the Trial Court to appreciate the matter and take an appropriate decision and dispose of the case in accordance with law. As the inconsistency in the complaint and the documents produced was not permitted to be rectified by the Trial Court, I think an opportunity has to be given to the appellant by allowing his application fired u/s 311 Cr.P.C. before the Trial Court. Hence, I answer the point in affirmative and proceed to pass the following:

ORDER

The appeal is allowed. The order passed by the Trial Court acquitting the respondent for the charge u/s 133 of the Act is set aside. The application filed by the applicant u/s 311 Cr.P.C. is allowed. The matter is remitted back to the Trial Court to give an opportunity to both the parties and to dispose of the case in accordance with law.

Any observations made in the body of the judgment shall not influence the Court below.

As the matter is of the year 2003, the Trial Court is directed to dispose of the case preferably within six months from the date of communication of this order.

To avoid the delay, both the parties are directed to appear before the Trial Court on 19-11-2011.