Section 138
Negotiable Instruments Act & typographical error IN COMPLAINT
The complaints due to bouncing of cheques are filed in the
courts of Chief Judicial Magistrates or Chief Metropolitan Magistrates, as the
case may be, depending on the location being Metropolitan Cities or other
locations. The cause and mode of filing complaint is contained in Negotiable
Instruments Act and Code of Criminal Procedure. Earlier, the complaints upon
dishonor of cheques used to be treated as summary proceedings and the further
examination of complainant post summoning of accused was not necessary.
However, in due course , the complaints are being treated as summon case, in
case, the accused files application under section 145(2) of Negotiable
Instruments Act, seeking further examination of complainant’s witness. The
permission for such cross examination of complainant witness are generally
granted in terms of judgment rendered by hon’ble Supreme Court in Mandvi
Co-Op Bank Ltd Vs Nimesh B Thakore (2010) 1 DCR 177. The complainant is therefore
examined in the pres-summoning stage and in post summoning stage as well and in
this backdrop, complaints u/s 138 of Negotiable Instruments Act are treated as
summons case.
The examination in chief is filed in affidavit on behalf of the
complainant and the documents relied upon by the complainant in original or
certified copy, as the case may be are duly exhibited. The cheque and bank memo
relating to communication regarding dishonor of cheque/s, in particular are filed in original. If on
the basis of averments, more particularly, if prima facie consideration is made
out apart from the other requisites as per section 138 of Negotiable
Instruments Act, summons to the accused are issued. There is also a presumption
in law, as per section 139 of Negotiable Instruments Act to the effect that,
unless, contrary is proved, the cheques shall be deemed to be issued towards
liability. The onus of rebuttal shifts on the accused and unless adequate rebuttal
is made during trial, the presumption shall hold good, provided other
requisites are duly proved as well.
The affidavit of evidence and the documents exhibited or marked
is required to be in sync with each other. However, there may be instances,
though rare, that the cheque number in several paces of complaint and affidavit
or dates are wrong and the cheque number or date did not match with the cheque
filed in original. Though, essentially, the cheque in original filed shall be the
cheque in respect whereof complaint u/s 138 of Negotiable Instruments Act is
deemed to be filed. The issue that whether wrong cheque number mentioned in the legal
notice , complaint or in affidavit shall be fatal to the prosecution case?
Still further, whether, upon taking of cognizance
of complaint that should be treated as valid complaint or valid cognizance.
Whether on the aforesaid premise, the complaint could be quashed. In other
words, whether such error (typographical error) shall be fatal to the complaint
case and that too, when the original cheque and bank memo are duly exhibited
and cause sought to be portrayed are on the basis of such exhibited documents.
The hon’ble Delhi High Court has dealt with the issue recently
in a matter captioned as Naresh Chand Tyagi Versus
Devender Kumar Tyagi CRL.M.C. 3367/2021. The case law in this regard was also analysed and a
decision was arrived at.
The contention
of the petitioner /accused before the high court
(i)
Cognizance
of offence was wrongly taken by the Magistrate of, District: North West,
Rohini, Delhi.
(ii)
The concerned cheque was never issued
by the petitioner.
(iii)
the cheque numbers mentioned
everywhere, whether it is the notice or
the pleadings of the complaint or even the evidence by way of affidavit did not
fulfill the ingredients of Section 138 NI Act,
(iv)
the proper statutory legal notice of
Thirty (30) from the date of receipt of bank
memo is the sine qua non of a
complaint
(v)
The notice is bad in law, since, the
cheque number itself mentioned in the notice was incorrect and that alleged
cheque was never dishonoured;
(vi)
Once, a complaint is filed in the
trial court, the complainant cannot amend it at any stage of the trial.
(vii)
That the respondent has not approached
the Trial Court with clean hands as the cheque number mentioned itself is wrong
and that was not dishonoured.
The
contention of the respondent/complainant before the high court were as under:
(i)
Incorrect mentioning of cheque it is
only a typographical error.
(ii)
The 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.
(iii)
After going through all the annexed
documents only, the concerned magistrate had correctly summoned the
petitioner/accused and it was observed that there are sufficient grounds to
issue summons as the cheque was returned dishonoured as funds insufficient.
Reliance
i.
Veena
Vs. State and Anr. 2017 SCC Online Del 9926.
ii.
ii.
Babli Majumder V. State of West Bengal 2008 SCC Online Cal 273
iii.
Bhim Singh V. Kan Singh 2003 SCC Online Raj
326.
iv.
Nilesh Kumar Lukand V. Nirmal Bardiya 2010 SCC
Online CHH 54.
v.
Pandit Gorelal V. Rahul Punjabi 2010 (2) M.P.
L.J. 6.
In
Veena Vs. State and Anr. 2017 SCC Online
Del 9926 para no. 7 may be reproduced for reference:
“7.That
a wrong cheque no. was stated in the complaint may not be the end-all and be-all
of the case of the appellant/complainant. The other factors are also required
to be seen to decide as to whether the appellant/complainant has been able to
prove his case. The original cheque was placed before the trial court and the
same was proved as Ex CW/q. Thus, the wrong number of chreque in the complaint
would not make any difference and has to be taken a typographical inadvertent
mistake”.
What are borne out of record is Naresh
Chand Tyagi
(Supra) that the petitioner has not denied signature on the annexed
cheque. 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 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.
It is held by the hon’ble Delhi High Court that
typographical error, though, repeated at several places cannot be the reason
for quashing of the proceedings. In this context, reference was made to Rajasthan
High Court in Oswal Finlease Private Limited V. State of Rajasthan and Another 2014
SCC Online Raj 6663 and it is held
as under:
“6.
Contention of the learned counsel for petitioner that mistake is bona fide
seems to be true. Respondent has relied on 2012(2)
Cr. L. R. (Raj) 904, M. R. Choudhary v. State of Rajasthan, where the
complaint was filed about a particular cheque whereas cheque submitted before
the trial court was different. Hence, the accused was acquitted, but here in
the present case, present petitioner wants to rectify his bona fide mistake.
Further reliance has been placed on AIR
2008 SC 3086, Subodh S. Salaskar vs. Jaiprakash M. Shah &Or,. where on
the facts of the case, amendments on the complaint has been disallowed. But
here in the present case, when complainant has been cross examined, the mistake
came to the notice of complainant and application for the rectification has
been moved and no person could be penalized for his bona fide mistake”.
The Rajasthan
High Court had therefore allowed the petition and petitioner(complainant) was permitted to make necessary amendments in
the complaint as about the details of bounced cheque and he was further allowed
to file a fresh affidavit in support of his complaint and the respondent is
free to cross examine on the same. It was further held in the aforesaid case that trial court must look into this aspect
and mentioning of wrong number of the cheque in 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 a typographical/inadvertent mistake.
Upon perusal of facts and judicial precedents,
substance of law and citations relied upon in this regard, the hon’ble Delhi
High Court in Naresh
Chand Tyagi (Supra) was pleased to
dismiss the petition filed by the accused /petitioner and directed the
concerned trial court to look into this aspect and held that mere mentioning of
wrong number of the cheque in 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 a typographical/inadvertent mistake.
CONCLUSION
What
therefore emerges on the basis of the precedents narrated above is that
complaint under section 138 of Negotiable Instruments Act shall not be liable
to be quashed on account of typographical error to the effect that cheque
numbers given on the legal notice or complaint in several places are wrong, so
long as cheque annexed and bank memo shows the cheque and the cognizance are
taken on the basis of documents annexed and duly exhibited. Mere typographical
error as regards the number of cheque shall not be fatal in any case. The
section 138 of Negotiable Instruments Act is invariably being tried as a summon
case and the complainant shall have the option to lead evidence and prove his
case pursuant to his cross examination even subsequent to application filed u/s
145(2) of Negotiable Instruments Act. In summons case, the accused is required
to file application u/s 145(2) of Negotiable Instruments Act, if the accused
intends to examine the complainant and that is done invariably. At that stage the
document placed on record could be again reiterated in support of the complaint
and the witness could be confronted with such documents. Moreover, even in pre
summoning evidence, so long as the cheque and bank memo is correct and
exhibited, merely because, due to typographical error cheque bears different
number, that in itself shall not negate the case of complainant. In this
perspective, what is of further importance that Section 91 and 92 of evidence
Act shall also come in play as what shall be relevant is a document and oral averment
contrary to written document shall be meaningless. Apart from that, the
complaint, if allowed to be quashed on the premise of wrong number of cheque
shown in the complaint, the same shall not aid to the cause of justice, rather
shall inhibit that. Therefore, with a view to do substantive justice
typographical error of such natures as narrated above, shall not be fatal to
the case and rectification in pleadings in the above backdrop could be allowed.
---------
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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