TMI Blog2008 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... y the complaint was time barred and not maintainable. Even otherwise, the averments made in Para 8 showed that even prior to 4th June, 2003 the cheque had been dishonoured and, therefore, the complaint on the basis of dishonouring of the cheque second time was not within limitation. 4. On 9 th October 2004, the respondent moved an application for making necessary correction with regard to date of presentation of the cheque with the Bank as well as memo of dishonour of cheque by the Banker of the accused. 5. It was pleaded in the said application that the respondent wanted to change the date of presentation of the cheque from 14 th of June to 28 th of June 2003. The complainant-respondent also sought to make an averment that the cheque was dishonoured and returned with memo lastly on 2 nd July, 2003 and not 14 th June, 2003. She sought that the date be corrected to 2 nd July, 2003. The application was contested. The learned trial Court rejected the said application by observing as under: Learned counsel for the applicant/complainant stated that the proposed amendments referred to by him in this application are typographical mistake, which the Court can correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Before proceeding further, it may be clarified first whether the mistakes as pointed by the complainant/revisionist in the complaint were typographical mistake or not and for that letter dated 18.3.2006, which was issued by the Oriental Bank of Commerce, Patiala to the complainant, may be referred to where the date has been clearly mentioned as 28.6.2003. The certificate shows that Manjit Kaur wife of Brij Mohan Singh Walia, resident of house No.16-E, New Lal Bagh Colony, Patiala, was having account No.1631 with their bank branch. On 28.6.2003, she deposited a cheque of ICICI bank of ₹ 10.25 lacs for collection. The said cheque was sent for collection to their Chandigarh Branch, which was returned unpaid on 7.7.2003. While in the complaint filed by the complainant, the date has been shown as 14.6.2003 where the complainant had presented the cheque lastly on 28.6.2003 in her account at Oriental Bank of Commerce, New Officers Colony Branch, Patiala. In this view of the matter, the mistake can be said to be typographical mistake. Similarly, the cheque was dishonoured and returned uncashed with the memo lastly on 2.7.2003 and not dated 14.6.2003. In this view of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C. does not contain any provision enabling the criminal Court to exercise such an inherent power. 10. in D.B. Sethi v. V.P. Dewan, 1971 (7) DLT 162 , a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. In para 9, the Court observed as follows: 9. As long as the order of the Magistrate does not amount to a judgment or a final order there is nothing in the Criminal P.C. prohibiting the Magistrate from the entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order. During the course of the proceedings, a Magistrate has to pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them... We would like to point out that this approach is wrong. What the Court has to see is not whether the Code of Criminal Procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground including order dated 3.5.1972, summoning the accused which must also be treated to be a nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. This has been held by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 . For these reasons, therefore, the appeal is allowed. The order of the High Court maintaining the order of the Magistrate dated 3.5.1972 is set aside and the order of the Magistrate dated 3.5.1972 summoning the appellant is hereby quashed. 8. Learned counsel for the petitioner contended that respondent could not rectify a typographical error in order to bring the complaint with limitation though the same would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g fully well that the cheques bearing Nos.466337 to 466340 were taken back and cheque Nos.2287334 to 2287337 were issued, and despite the fact that this fact has been mentioned in the notice issued under Section 138 of the Negotiable Instruments Act on behalf of the complainant to the accused, based the complaint on the cheques bearing Nos.466337 to 466340 without even mentioning anything about the other set of cheques. Obviously, the complaint is based upon the cheques bearing Nos.466337 to 466340. While that being so, the complainant introduced into evidence the cheques bearing Nos.2287334 to 2287337 in proof of the complaint. So, we find that the cheques on which the complaint is based, have not been produced, whereas a different set of cheques was produced into evidence. The summoning order has been passed only on the basis that the cheques concerned in the complaint were 466337 to 466340 only without taking note of the fact that a different set of cheques was introduced into evidence. 50. Therefore, we find that not only the complaint is defective, but also there is total non-application of mind by the learned Magistrate also. This is not a mere technical defect or a mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case order of the learned trial Court has been set aside by the learned Sessions Judge and, therefore, the present petition cannot be treated to a second revision petition. Even otherwise also, the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is not ousted to correct the illegality or irregularity in the order passed by the learned Sessions Judge. The judgments relied upon by the learned counsel for the respondent are also to be treated per incuriam in view of the law laid down by the Hon'ble Supreme Court in the case of Major General A.S. Gauraya and another (supra) holding that the trial Court has no inherent power under the Code of Criminal Procedure and, therefore, in exercise of inherent power, it was not open to the learned trial Court to have allowed the amendment of the complaint as ordered by the learned Sessions Judge. The order passed by the learned trial Court was in consonance with the law which did not call for interference by the learned Sessions Judge. Consequently, this petition is allowed. The order passed by the learned Sessions Judge is set aside and that of the trial Court is restored. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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