The court has the authority to direct the trial court to consider and make necessary corrections in the notice of accusation and summoning order under Section 138 of the Negotiable Instruments Act.

Judgment

Mr. Harpreet Singh Brar, J.

The present petition has been filed under Section 482 Cr.P.C. for setting aside impugned order dated 12.10.2023 (Annexure P-3) vide which the prayer made by the petitioner for modification/clarification of order dated 16.05.2018 has been dismissed.

2. Learned counsel for the petitioner inter alia contends that the petitioner has submitted two cheques bearing No. 783379 and 783380 dated 05.04.2018 and both were exhibited by the petitioner as Ex. C-1 and Ex. C-3. Both the cheques were considered by the learned trial Court at the time of preliminary evidence and the notice of accusation was issued on 16.05.2018 but inadvertently learned trial Court has given notice of accusation with respect to only one cheque bearing No. 783379 and cheque bearing No. 783380 has not been mentioned in the notice of accusation. The aforesaid omission when came to the knowledge of the petitioner, he immediately moved an application before the learned trial Court to make the necessary correction. However, learned trial Court has wrongly relied upon ratio of law laid down in Adalat Prasad vs. Rooplal Jindal, 2004(4) RCR (Criminal) 338 (SC) to conclude that the summoning order issued by the concerned jurisdictional Magistrate can not be amended as it would amount to review and recall of the summoning order.

3. Having heard learned counsel for the parties and after perusing the record, it transpires that the complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI Act’) was filed against the respondent on the ground that two cheques have been issued by the petitioner vide cheque bearing Nos. 783379 and 783380 on 05.04.2018 for an amount of Rs. 8 Lacs each in discharge of his pre-existing legally enforceable debt and both the cheques were dishonored vide Memo dated 11.04.2018 due to reason of the ‘funds insufficient’. The aforementioned factual position is evident from the copy of the complaint instituted under Section 138 of the NI Act (Annexure P-2). The demand notice, return memo of the concerned bank as well as all documents have been exhibited as Ex. C-1 to C-7 during preliminary evidence which include both the cheques in question. The summoning order and accusation notice was issued only with regard to one cheque and the application filed by the petitioner for modification of the notice of accusation has been wrongly and erroneously dismissed by the learned trial Court.

4. Learned counsel for the respondent has not been able to controvert the factual position. However, he submits that learned trial Court has passed the impugned orders by making correct appreciation of the facts and the law applicable to the facts of the case of the petitioner.

5. The reliance on Adalat Prasad’s case (supra) by the learned trial Court while declining to amend the summoning order and notice of accusation is erroneous as the ratio of Adalat Prasad’s case (supra) is to the extent that the jurisdictional Magistrate after issuance of process under Section 204 Cr.P.C. can not discharge the accused as the order of discharge after issuance of summoning order would amount to review and recall.

6. In view of the facts and circumstances of the case, the present petition is allowed. Learned trial Court is directed to consider both the cheques bearing No. 783379 and 783380 dated 05.04.2018 and make necessary correction in the notice of accusation and summoning order.