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High Court of Kerala
N.K. BALAKRISHNAN
Linda John Abraham
Versus
Business India Group Company & Others
Crl.MC.No. 618 of 2011
Decided on : 04-10-2011
Negotiable Instruments Act 1881 - Sections.138 and 141 - Dishonor of Cheque - When there is no averment in the complaint that an accused was in charge of and responsible to company for conduct of its business, whether same can be permitted to be amended incorporating averments to that appeal ? - Amendment - When warranted - Challenged -Held, The two cheques in question were signed by the Chairman and Managing Director of the company. The first accused is the company itself. The learned counsel for the fourth respondent would submit that since A2 and A3 are stated to be not now available, the revision petitioner wanted to rope in the fourth accused and it is for that purpose now the petitioner has come forward with this amendment. Here, since the particulars required under S.141 of the Act were not incorporated in the complaint, the accused would be entitled to get an order of acquittal. That position cannot be altered by causing amendment to introduce a new plea which was originally not there. It cannot be treated as a correction or a clerical mistake or any such defect that can be cured. The amendment would go to the core of the matter placing the fourth accused in a disadvantageous position which will cause serious prejudice to him. It is a criminal case where the fourth accused can be sentenced to imprisonment also if found guilty. Hence such an amendment cannot be permitted at all. If the amendment is allowed, it would result in a substantial change in the complaint. The contention that even after the amendment the fourth accused can raise all contentions before the trial court and so the amendment can be allowed does not appeal to me since the amendment will cause substantial change in the nature and character of the case causing serious prejudice to the fourth accused. That has got fundamental impact on the defence that can be raised by the fourth accused. Court find no reason to allow the amendment sought for. In the result this Criminal M.C. is dismissed.
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. (!)
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 can also be discerned but it is only to introduce the specific words as employed in Section 141 the amendment petition was filed. The learned Magistrate dismissed the application on a wrong understanding of the amendment sought to be introduced, the learned counsel submits. It was found by the learned Magistrate that there is no enabling provision in the Code permitting the party to amend the pleadings unlike in Civil Procedure Code. It was also observed by the learned Magistrate that in the complaint originally filed there is no allegation against accused No.4 and from the documents produced, it can only be found that the Chairman and Managing Director alone had signed the two cheques produced in the case.
3. The learned counsel for the petitioner/complainant would submit that though there is no specific provision in the Code of Criminal Procedure enabling the amendment of the complaint, the Court has inherent power to rectify the mistakes. The learned counsel has relied upon certain decisions which are referred to here. In the decision in Madhavi v. Thupran reported in 1987 (1) KLT 488 it was held:
“Even though inherent power saved under S. 482 of the Cr.P.C. is only in favour of High Courts, the subordinate criminal courts are also not powerless in cases like this to do what is absolutely necessary for dispensation of justice in the absence of a specific enabling provision provided there is no prohibition and no illegality or miscarriage of justice is involved. Under such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations. All the criminal courts are having such an auxiliary power subject to restrictions which justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else”.
4. That was a case which was filed claiming maintenance u/s 125 of Cr.P.C. There a clerical mistake was sought to be corrected namely the name of the lady as ‘Malathi’ instead of ‘Madhavi’. Therefore, the learned counsel for the respondents would submit that the aforesaid decision has no application since in this case a new plea, which was conspicuously absent in the complaint is sought to be introduced to fasten the criminal liability on the 4th accused also. Therefore, even though the court may have inherent power to rectify certain patent clerical mistakes, it cannot be said that the complaint can be amended incorporating new pleas.
5. Sainulabdeen v. Beena reported in 2004(1) KLT 859 has also been cited by the learned counsel
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