1 2025:CGHC:10602 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 782 of 2025 • Rakesh Jain S/o Shri Kanak Raj Jain Aged About 49 Years R/o Sadar Bazar, P.S. Kotwali, Tahsil And District - Rajnandgaon Chhattisgarh ... Petitioner versus 1. Sunil Lekhwani S/o Late Shayamlal Lekhwani Aged About 48 Years R/o Sunil Foot Wear, Gudakhu Line, P.S. Basantpur, Tahsil And District - Rajnandgaon Chhattisgarh House Address - Lalbagh, Sindhi Colony, P.S. - Basantpur, Tahsil And Dist. Rajnandgaon Chhattisgarh 2. State Of Chhattisgarh Through District Magistrate Rajnandgaon, Distt. Rajnandgaon Chhattisgarh ... Respondents For Petitioner : Mr. Ravi Kumar Bodhani, Advocate For Respondents : Ms. Priya Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma Order on Board 04/03/2025 1. Petitioner has preferred this CRMP under Section 528 of the Bhartiya Nagrik Suaksha Sanhita, 2023 setting aside the impugned order dated 15/01/2025, passed by the learned Sessions Judge, District Rajnandgaon (C.G.) in Cr.R. No. 64/2024, whereby the revision application filed by the petitioner has been dismissed. VAISHALI LUCKY NAGARIA Digitally signed by VAISHALI LUCKY NAGARIA Date: 2025.05.22 12:16:54 +0530 2 2. The present Criminal Miscellaneous Petition filed by the petitioner under Section 528 of Bhartiya Nagrik Suraksha Sanhita 2023 with the following relief:- 1. That, this Hon'ble Court may kindly be pleased to call for the records of Regular complaint case No.2977 of 2018 pending before the learned JMFC District Rajnandgaon. 2. That, this Hon'ble Court may kindly be pleased to Quash and set aside the order dated 15.01.2025 (Annexure A/1) whereby application dated 30.05.2024 has been rejected the revission petition and order dated 04.10.2024. 3. That, this Hon’ble Court may kindly be pleased to accept application 30.05.2024 and set aside order dated 15.01.2025 along with order 04.10.2025 in the interest of justice. 3. Any Other Order which this Hon'ble Court deems fit in the interest of Law and Justice. 3. Facts of the case are that on 11/01/2018 a complaint under section 138 N. I. Act was filed by the Applicant against Respondent No.1 in the court of Judicial Magistrate First Class, Rajnandgaon, District Rajnandgaon under Section 138 of the Negotiable Instruments Act, and on 15/01/2018 the complaint was dismissed by the Hon'ble Judicial Magistrate First Class, District Rajnandgaon on the ground of absence on 08.03.2018. Thereafter the revision case No.45/2018 was filed by the Applicant which was accepted by the Revision Court on 11/02/2019 (Annexure A/3), and the complainant/revisionist was ordered to appear before the trial Court on 23.02.2019. 4. Learned counsel for the petitioner submits that the order dated 15/01/2025 passed by the learned revisional court and order dated 04/10/2024 learned trial court, is illegal and contrary to the law. the order has been passed by Trail Court and The learned Revesional Court without considering the ANNEXURE A/1 to Annexure A/3 along with entire relevant documents affix in original Case. He further submits that it was stated by the applicant during the course of 3 arguments before the trial Court that in the legal notice sent by the applicant, the business place of Sunil Foot Wear and Legal notice has been sent to both the places of residence, Lalbag, Rajnandgaon, which has been received by the respondent no.1 and the respondent who has appeared in the revision case No. 45/2018 has never stated that the present complaint is not against him and that the Cheque in question has been issued by my brother Rakesh and I am not the accused; no such statement has been given by the respondent in the revision petition and the respondent kept the facts hidden with the intention of saving his brother, due to which, the ill-intention of the respondent no.1 and fraud committed with the court appears clear. He also submits that the trial court issued notice to the respondent no.1 and the respondent no.1 appeared before the trial court and got bail. After that, the respondent no.1 Sunil never filed any objection application that the cheque in question is not mine and the complaint has been registered against me which is wrong. After that, even at the time of the crime statement before the trial court, the respondent remained silent and kept appearing before the court in every hearing in a fraudulent manner, protecting his brother Rakesh or not revealing his name. When the complainant/applicant came to know during the evidence that the name of Sunil Lekhwani has been registered in Sunil Foot Wear in place of Rakesh, then Rakesh should be corrected in place of Sunil and the order should be issued to Rakesh, but the trial court has passed an order contrary to the circumstances of the case, which deserves to be set aside. The Court therein held that the typographical mistakes which have beer pointed out by the complainant-petitioner, should have been rectified by the trial Court, as trial Court has inherent power to rectify such typographical mistakes to do justice between the parties. 4 5. On the other hand learned counsel for the State opposes the submissions made by learned counsel for the petitioner and submits that the impugned order has rightly confirmed by the learned trial Court. 6. I have heard learned counsel for the parties and perused the records. 7. Considering the facts and circumstances of the case, submissions made by the learned counsel for the parties and perused the records at-most circumspection and found that the petitioner has filed the complaint case under Section 138 of the Negotiable Instrument Act, 1881 in short “NIA Act, 1881” against the “Sunil Lekhwani” even though he has issued notice under Section 138(B) of the NIA Act, 1881 to the “Sunil Lekhwani” and thereafter Magistrate has taken cognizance on 04.10.2024 after filing of complaint petitioner has filed an application to delete the name of accused “Sunil Lekhwani” and in place the name of “Sunil Lekhwani” petitioner wants to insert/add the name of “Rakesh Lekhwani” as accused, which has been dismissed by the concerned Magistrate on 04.10.2024. It is pertinent to mention here that there is no notice has been issued by the complainant to the “Mr. Rakesh Lekhwani”. It is well settled law that “if the amendment sought is a simple infirmity which is curable by means of a formal amendment or/and where no prejudice to be caused to the other side, then the Courts are empowered to allow such request(s) of amendment. However, where the issue is not related to a curable infirmity and the same cannot be corrected by a formal amendment or/an if the opposite side my get prejudiced by such amendment, the courts shall not allow such amendment application(s).” However, in this case complainant trying to change the accused without giving notice under Section 138(B) of NIA Act to 5 the Rakesh Lekhwani, therefore, the amendment sought is not a simple in nature and it is not related to a curable infirmity and the same cannot be corrected by the formal amendment because the opposite side may get prejudiced by such amendment, therefore trial Court as well as Revisional Court has rightly rejected the application filed by the complainant and revision filed by the complainant, in order impugned there is no illegality, and perversity and there is no jurisdictional error committed by trial Court as well as Revisional Court therefore, present petition deserve to be and is hereby dismissed. Sd/- (Arvind Kumar Verma) JUDGE vaishali