If the documents on record are correct then wrong cheque number in complaint would be taken as a typographical mistake: High Court of Delhi
Wrong number of the cheque in the complaint would not make any difference if the documents placed on record gives the correct position and can be taken as a typographical/inadvertent mistake and the same was upheld by High Court of Delhi through the learned bench led by Justice Rajnish Bhatnagar in the case of Naresh Chand Tyagi vs. Devender Kumar Tyagi [CRL.M.C. 3367/2021] on 17.02.2022. The facts of the case are that the petitioner is denying that cheque bears his signature which was issued to the respondent. Further, no FIR was registered with regard to the issue instead, respondent filed a complaint against the petitioner pertaining to a different cheque number or on the basis of cheque not bearing his signature. The petitioner further stated that the cheques were lost or stolen which is evident from the fact that no letter/communication has been sent to bank to stop the payment of the cheques concerned. By way of this petition, the petitioner is seeks to quash the Criminal Complaint filed by the respondent for an offence which is not even in existence since the cheque was never issued by the petitioner. The petitioner’s counsel submitted that the cheque was never issued by the petitioner. Further, the cheque number has been written wrongly everywhere whether it is the notice or the pleadings of the complaint and even the evidence by way of affidavit does not fulfil the ingredients of Section 138 NI Act. It was further submitted that there is no provision of amendment in a criminal proceedings and hence, once a complaint is filed in the trial court, the complainant cannot be amended at any stage of the trial. The complaint did not contain any averment with respect to the petitioner and the role played by him in commission of the alleged offence. The respondent’s counsel submitted that it is only a typographical error and that the copy of cheque along with the bank return memo was duly annexed with the complaint displaying the correct cheque number which was issued by the petitioner herein to discharge his liability. It was further submitted that after going through all the annexed documents, it was observed that there are sufficient grounds to issue summons as the cheque was returned dishonoured as the funds were insufficient. In the instant case, after considering the facts and circumstances of the case, the Court established that it to be evident that there was a typographical error. It was therefore, held that wrong number of the cheque in the complaint would not make any difference and with the above observations present petition was dismissed. The Court observed that “wrong number of the cheque in the complaint would not make any difference if the documents placed by respondent on record gives the correct position and can be taken as a typographical/inadvertent mistake.”
VIA VIDEO CONFERENCING) IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 17.02.2022 Reserved on :20.12.2021 CRL.M.C. 3367 2021 Naresh Chand Tyagi Through: Mr. NiteshGoel Advocate. Petitioner Devender Kumar Tyagi Through: Mr. ShivekTrehan and Mr. Shagun Respondents Chopra Advocates. HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J. Crl. M.A No. 20434 2021Exemption allowed subject to all just exceptions. The application stands disposed of. CRL.M.C. 3367 2021 and Crl. M.A No. 20433 2021By way of this petition filed under section 482 Cr.P.C read with Article 227 of the Constitution of India the petitioner is seeking following reliefs: CRL.M.C. 3367 2021 VIA VIDEO CONFERENCING) a. Pass an order calling for the records of the Criminal Complaint NI Act case bearing No. 886 2021 titled "Devender Kumar Tyagi Vs. Naresh Chand Tyagifiled on 12.02.2021 by the Respondent under Section 138 of the Negotiable Instruments Act pending before the Court of Ld. MMDigital Court 01 North West District Rohini Court Delhi b. Pass an order quashing the Criminal Complaint NI Act case bearing No. 886 2021 titled “DevenderKumar TyagiVs. Naresh Chand Tyagi”filed under Section 138 of the Negotiable Instruments Act and the summoning order dated 07.10.2021 taking cognizance and the proceedings emanating there from pending adjudication the Court of Ld. MM Digital Court 01 North West District Rohini Court Delhi c. Pass such other and further order(s) as it may deem fit and proper in the facts and circumstances of the case and in the interest of the justice. Issue notice. Learned Counsel for respondent who appears on advance notice accepts notice. It is submitted by the counsel for the petitioner thatthe learned Trial Court has taken cognizance of an offence which is not even in existence since the cheque was never issued by the petitioner. It is further submitted by him thatthe cheque number has been written wronglyeverywhere whether CRL.M.C. 3367 2021 VIA VIDEO CONFERENCING) it is the notice or the pleadings of the complaint or eventhe evidence by way of affidavit which does not fulfil the ingredients of Section 138 NI Act as it requires the complainant to issue proper legal notice within thirty days from the date ofreturn memo issued by the bank which has not been fulfilledin the present case as the notice has been sent of a chequedifferent from the one which was dishonoured. It is further submitted that there is no provision of amendment in a criminal proceedings and hence once a complaint is filed in the trial court the complainant cannot amend it at any stage of the trial. It is further submitted that the complaint did not contain any averment with respect to the petitioner and the role played by him in commission of the alleged offence. It is further submitted by the counsel for the petitioner that the respondent has not approached the Trial Court with clean hands as a bare perusal of the complaint shows that the complaint filed by the respondent does not disclose the correct cheque number. On the other hand it is submitted by the counsel for respondent that it is only a typographical error. It is further submitted that copy of cheque along with the bank return memo was duly annexed with the complaint displaying the correct cheque number which was issued by the petitioner herein to discharge his liability. It is further submitted that after going through all the annexed documents learned MM correctly summoned the petitioner and it was observed that there are sufficient grounds to issue summons as the cheque was returned dishonoured as funds insufficient. CRL.M.C. 3367 2021 VIA VIDEO CONFERENCING) Learned counsel for the respondent has placed reliance on the following judgments : i. VeenaV. State and Anr. 2017 SCC Online Del 9926. ii. BabliMajumder V. State of West Bengal 2008 SCC Online Cal 273 CHH 54. iii. BhimSingh V. Kan Singh 2003 SCC Online Raj 326. iv. NileshKumar Lukand V. NirmalBardiya2010 SCC Online v. PanditGorelal V. Rahul Punjabi 2010M.P. L.J. In the instant case after perusing the records it is evident that there is a typographical error. Petitioner herein is denying that said cheque does not bear his signature which is a matter of fact and can be proved during the course of trial. It is pertinent to mention here that no FIR has been registered with regard to the issue that respondent has filed a complaint against the petitioner pertaining to a different cheque number or on the basis of cheque not bearing his signature. It is also not the case of the petitioner that cheques lost or stolen which is evident that no letter communication has been sent to bank to stop the payment of the cheques concerned. The submissions of learned counsel for the respondent has force in it. As far as the contention of the counsel for the petitioner is concerned that the cheque number has been wrongly mentioned is of no CRL.M.C. 3367 2021 VIA VIDEO CONFERENCING) relevance and such ground cannot be the reason for quashing of the proceedings. Reliance can be placed on the judgment of Rajasthan High Court inOswalFinlease Private Limited V. State of Rajasthan and Another 2014 SCC Online Raj 6663.Relevantpara 6 & 7 are reproduced herein : Contention of learned counsel thatmistake is bonafide seems tobe true. Respondent has relied on 2012(2)Cr. L. R. 904 M. R. Choudhary v. Stateof Rajasthanwhere the complaint was filedabout a particular cheque whereaschequesubmitted before the trial court wasdifferent. Hence theaccused was acquittedbut here the present case presentpetitioner wants to rectify his bonafidemistake. Further reliancehas been placed onAIR 2008 SC 3086 Subodh S. Salaskar v.Jaiprakash M. Shah &Ors. where on the factsof the case amendments on the complaint hasbeen disallowed. But here in thepresentcase when complainant has been crossexamined themistake came to the notice ofcomplainant and application for therectification has been moved and no personcould be penalized forhis bonafidemistake. 7. Hence application is liable to be allowedand the present petitions is allowed and theorder dated 26.9.2011 passed by Addl. CivilJudge cum Addl. Chief Judl. Magistrate No.10 Jaipur Metropolitan Jaipur inCriminal complaint no.869 2006 is set aside.Present petitioner is allowed to makenecessary amendments CRL.M.C. 3367 2021 VIA VIDEO CONFERENCING) in the complaint asabout the details of bounced cheque and he isallowed to file a fresh affidavit in supportof his complaint and the respondent is freeto cross examine on the same.” Hence the concerned trail court must look into this aspect and in my opinionthe mentioning of wrong number of the chequein the complaint would not make any difference as there are documents placed by respondent on record which gives the correct position and has to be taken as atypographical inadvertent mistake. Therefore with the above observations present petitionis dismissed. Pendingapplicationsare also disposed ofaccordingly. RAJNISH BHATNAGAR J FEBRUARY 17 2022 CRL.M.C. 3367 2021 