The court emphasized that correction of summoning orders and notices of accusation should not be permitted at the fag end of a trial, especially when it would prejudice the accused and necessitate restarting the trial.

JUDGMENT :

Rajbir Sehrawat, J.

1. The present petition has been filed by the petitioner seeking quashing of the impugned order dated 18.12.2018 (Annexure P/12) passed by the trial Court in Case No.2222/RBT/09.02.2017, titled as “Surinder Paul Maini vs. International Recreation and Amusement Ltd.& others” and for directing the trial Court to allow his application to rectify the error/mistake in the summoning order dated 22.02.2017 (Annexure P/4) and in notice of accusation dated 25.08.2017 (Annexure P-5).

2. It is submitted by learned counsel for the petitioner that the application moved by the petitioner for correction of the typographical mistake in summoning order and the notice of accusation has been illegally and unlawfully declined by the trial Court. Further; he submits that the petitioner/complainant issued legal notice regarding the non-payment of the cheques bearing No.004579 dated 25.10.2016 and 004580 dated 25.11.2016. However, the trial Court summoned the accused and issued notice of accusation only qua cheque bearing No.004580 dated 25.11.2016 amounting to Rs.3,50,000/-. This was a typographical error and the same could not occur even to the petitioner/complainant when he was leading the evidence. Subsequently, when the same came to notice of the petitioner/complainant, immediately an application was moved for correction of the typographical mistake and for inclusion of the cheque No. 004579, dated 25.10.2016 in the summoning order and the notice of accusation, as well. However, the said application has been wrongly rejected by the trial Court. Hence, the order passed by the trial Court deserves to be set aside and a direction deserves to be issued to the Court below to correct the summoning order and the notice of accusation accordingly. Counsel for the petitioner has also referred to a judgment of a co-ordinate Bench of this Court in “Indiabulls Housing Finance Ltd. vs. Narula Electricals and others” (Criminal Misc.No.M-32591 of 2018, decided on 24.09.2018)

3. On the other hand, learned counsel for respondent no.3 submits that there is no illegality in the order passed by the trial Court. The alleged mistake in the order is not a typographical error. The summoning order was passed regarding one particular cheque only. The entire trial has been carried out qua one cheque only. Even the cross-examination of the witnesses was conducted by the respondent-accused keeping in mind only one cheque qua which the notice of accusation was served upon respondent no.3. Therefore, at this fag end of the trial, the trial Court could not have modified the notice of accusation and thereby permitted the petitioner/ complainant to fill up the lacuna. Counsel for respondent no.3 has further submitted that the proceedings under Section 138 of the Negotiable Instruments Act, 1881 are, in fact, not the recovery proceedings. Even if there is trial for one cheque, it would not make any difference to the case of prosecution; because if proved in accordance with law, respondent no.3 could be punished even for one cheque. So far as, the amendment of summoning order and notice of accusation is concerned, the petitioner could have availed his remedies at the relevant time by challenging the order passed by the trial Court, but no such step was taken by the petitioner. Even now, the petitioner has not challenged the original summoning order and the notice of accusation, rather, to introduce charge qua another cheque in a surreptitious manner; the petitioner has filed application for correction of alleged typographical mistake. Since, it was not a typographical mistake, therefore, the Court below has rightly rejected the application.

4. Having heard the counsel for the parties, this Court does not find any substance in the argument raised by counsel for the petitioner.

5. It is not even in dispute that the complaint having been filed by the petitioner, the summoning order was passed by the trial Court qua one cheque bearing No.004580 dated 25.11.201