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BOMBAY HIGH COURT
T.V. Nalawade, J.
Amol Shripal Sheth —Petitioner
versus
Hari Om Trading Co and Ors. —Respondents
Cri App No. 1346, 1347 and 1348 of 2006
Decided on 3.10.2012
IMPORTANT POINT
Accused cannot be allowed to take benefit of defect found in complaint.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Sections 190, 319 and 482—Dishonour of cheque—Amendment of complaint —If Magistrate takes cognizance of offence he needs to ascertain as to who has committed offence—In many cases complainant may not be able to get complete and correct name of responsible persons for dishonour of cheque at the time of filing of complaint—Magistrate can take cognizance of offence and he may issue process even against persons whose name is not correctly described by complainant—If accused points out defects in name given in complaint, but he is not in a position to show that he is a different person, he cannot take benefit of such defects—There is no provision in Cr.P.C. providing for dismissal of complaint due to such defect—Burden to establish identity of accused and involvement of accused in crime is always on prosecution and opportunity to establish both things cannot be taken away from prosecution if there is such defect. (Para 16)
(ii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 190—Dishonour of cheque—Amendment of complaint—There is no specific provision dealing with amendment of complaint—There is also no provision preventing Court from allowing amendment in complaint—Magistrate takes cognizance of offence—Magistrate has incidental and ancillary power to main power of taking cognizance of offence to allow such amendment—Power can be exercised before and after taking cognizance of offence. (Para 17)
(iii) Negotiable Instruments Act, 1881—Sections 138 and 141—Evidence Act, 1872—Sections 106 and 114—Dishonour of cheque—Amendment of complaint—Offence by company—Director receiving notice for company or other office bearer receiving notice for company, is expected to give name of person in-charge and responsible for conduct of business of company—If office bearer receiving notice prefers to give reply to statutory notice, it is not sufficient for him to only deny responsibility, but it becomes necessary for him to say something on behalf of company about person who can be held responsible—If drawer of cheque or Managing Director or office bearer, who received notice, does not inform name of person responsible for dishonour of cheque and so name of person responsible for conducting business of company is mentioned incorrect in complaint, complainant cannot be blamed for defects found in complaint—When there are allegations as expected in Section 141 in complaint, such allegations would become sufficient for proceeding against Managing Director and other office bearer who received statutory notice for company or who has signed cheque—In such a case, provisions of section 106 and 114 of Evidence Act can be used. (Paras 19 and 20)
T.V.Nalawade, J.— All the three applications are filed under Section 482 of Criminal Procedure Code. The petitioner from the three proceedings is the same and the same point is involved in the three proceedings and so they are being decided together.
2. The proceeding bearing Criminal Application No. 1346/2005 is filed against the judgment and order of Criminal Revision No. 335/2004, which was pending in the Sessions Court, Jalgaon. This revision was filed against the order made in RCC No. 315/2003 by Chief Judicial Magistrate, Jalgaon (hereinafter referred to as “Magistrate” for short) on Ex. 12. The C.J.M. allowed the complainant from the proceeding filed under section 138 of the Negotiable Instruments Act to correct the name of the accused/present petitioner from “Amol Trilokchand Shaha” to “Amol Shripal Seth”. The Magistrate had already issued process against the accused when the amendment was allowed.
3. The complainant has contended that the present petitioner was Chairman of the partnership firm, accused No.1. It is contended that accused No.3 was working as a Director and accused No. 4 was the Officer authorized by accused No. 1 concern to sign the cheques. It is the case of the complainant that the accused Nos. 2 to 4 are responsible for conducting the business of accused No. 1 concern as they were doing acts like purchasing goods, preparing bills and making payments in respect of the goods purchased for accused No.1. The complainant had issued a statutory notice in this case after receiving the bank note in respect of dishonour of cheque, but the reply was not given in RCC No. 315/2003. It is contended that the notice was received on 14.2.2003.
4. In the statutory notice, the complainant had given the name of present petitioner as “Amol Trilokchand Shaha”. The Revisional Court has held that the complainant probably did not know the correct name of this accused, but there cannot be any question of identity about this accused. The Sessions Court has held that on the basis of document like Ex. 18, produced before the Magistrate, it can be inferred that the present petitioner was working as Managing Director of accused No. 1 company. This document was purportedly signed by the present petitioner. The Sessions Court has held that the petitioner is the same person, who was named as accused No. 2 in the complaint and so interference in the order made by Magistrate is not possible. In the present proceeding a copy of letter signed by Company Secretary came to be produced for petitioner to show that the petitioner was never working as Chairman of accused No. 1 concern.
5. The advocate of the complainant has placed reliance on three reported cases which are as under:
(i) Shri. Waman Laxman Sawant v. Shri. Ashok Anand Sawant & Anr.1; (ii) Maan Agro Centre v. E.I.D. Parry (India) Limited & Anr.2 and M/s. Dalmiya Cement (Bharat) Ltd. v. M/s. Galaxy Traders and Agencies Ltd. and others.3 (In the case of Waman Sawant cited supra, this Court has held that though there is no express provision giving power to Magistrate to allow the amendment in the complaint, such power is there as such power is required for very existence and survival of the Criminal Court. In the second case of Maan Agro Centre cited supra, this Court has held that if there is no doubt about the identity of accused, it can be presumed that no prejudice will be caused, if the name of the accused is not correctly mentioned in the complaint. In the second case one case of Rajasthan High Court reported as Bhim Singh v. Kan Singh4 was referred. Rajasthan High Court has held that mistakes can be rectified by Subordinate Criminal Courts by observing that Subordinate Courts are not powerless to do what is absolutely necessary for dispensation of justice in the absence of any specific provision preventing them to do so. In the third case M/s. Dalmia Cement cited supra, the Apex Court has discussed the object behind the provisions of Sections 138 to 142 of the Negot
