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2011 Supreme(Ker) 859

N.K.BALAKRISHNAN
Linda John Abraham – Appellant
Versus
Business India Group Company – Respondent


Advocates Appeared:
For the Petitioner:Smt. Asha Elizabeth Mathew, Advocate.
For the Respondents:M.R. Sudheendran, Advocate.

Judgement Key Points

In a complaint under Sections 138 and 141 of the Negotiable Instruments Act alleging dishonour of cheques issued by a company, where the original complaint lacks any specific averment that a director (other than the signatories) was in charge of and responsible to the company for the conduct of its business, an amendment seeking to introduce such plea is not permissible. (!) [15000247620001][15000247620013] (!) This is not a mere clerical error or curable defect that courts can rectify using inherent powers under Section 482 CrPC, as subordinate courts lack broad inherent powers akin to those under CPC Order VI Rule 17.[15000247620003][15000247620008][15000247620014] Allowing the amendment would effect a substantial change in the complaint's nature and character, fundamentally impacting the accused's defence and causing serious prejudice, particularly since conviction could result in imprisonment.[15000247620013] (!) Proceedings under Section 138, though quasi-civil in some aspects, do not permit supplementation of foundational pleadings required under Section 141 after process issuance or plea recording.[15000247620006][15000247620012][15000247620020] The petition for amendment was accordingly dismissed. (!)


Judgment :

1. The complainant in CC.692/09 renumbered as CC.52/2010 which is now pending before JFCM – III, Mavelikkara, is the petitioner. The complaint was filed against four persons namely; against the company, its chairman, Managing Director and another Director. The complainant filed a petition for amendment to introduce a plea to the effect that accused Nos.2 to 4 were/are persons in charge of and responsible for the conduct of the business of the company. That plea was not raised in the original complaint filed by him. The second and third accused are the Chairman and Managing Director. The cheques were signed by those persons. Hence there would be no difficulty to sustain the prosecution, provided the case is otherwise acceptable.

2. So far as the 4th accused is concerned, it was not specifically stated in the complaint that at the time the offence was committed he was in charge of and was responsible for the conduct of the business of the company. According to the learned counsel for the petitioner though the words employed in Section 141 of the N.I. Act are not specifically mentioned in the complaint, on going through the complaint in entirety, the role of the 4th accused





















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