IMPORTANT POINTS
The amendment sought, if allowed, will not change the nature and the character of the complaint or the cause of action for filing the complaint. The original transaction is not the cause of action for filing a complaint for an offence under Section 138 of the Act. The dishonour of the cheque for want of sufficient funds in the account of the drawer of the cheque and non-payment of the amount of the cheque by the drawer within the period stipulated on receipt of statutory notice from the payee constitute the cause of action for a complaint for an offence under Section 138 of the Act. Even if there is no averment at all in the complaint with regard to the original transaction, it will not affect the maintainability of the complaint, if it contains averments which constitute the ingredients of an offence under Section 138 of the Act. But, on this ground, the prayer for amendment of the complaint cannot be allowed. In a case where the details of the original transaction are mentioned in the complaint, if drastic change is made by way of amendment to such details at a stage when evidence in the case is about to commence, it would cause serious prejudice to the accused.

ORDER :

1. The petitioner is the accused in the case C.C.No.4199/2014 on the file of the Court of the Judicial First Class Magistrate-I, Thrissur.

2. The aforesaid case is instituted upon the complaint (Annexure-A1) filed by the first respondent company (hereinafter referred to as 'the complainant') against the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

3. The material averments in Annexure-A1 complaint are as follows: The accused had joined the 9th day monthly kuri started by the complainant company on 09.02.2007 as per statement No.10. He had bid the kuri on 09.02.2007. The kuri amount was paid to him by the complainant. An amount of Rs.50,320/-was due to the complainant from the accused in the kuri transaction. Towards that amount, the accused signed and gave a cheque dated 20.11.2010 in favour of the complainant. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount of the cheque.

4. The complainant filed Annexure-A4 application for amendment of the complaint. The amendment, which was prayed for by the complainant, was as follows: The date of commencement of the kuri has to be corrected as 05.10.2006 instead of 09.02.2007. The monthly day of the kuri has to be corrected as 5th day instead of 9th day. The averment that the accused joined the “9th day monthly kuri as per statement No.10” has to be substituted as “5th day monthly kuri as per statement No.31”. The date on which the accused bid the kuri has to be corrected and substituted as 05.12.2006 instead of 09.02.2007.

5. The petitioner filed Annexure-A5 objection to Annexure-A4 application, contending that if the amendment was allowed it would cause serious prejudice to him.

6. As per Annexure-A6 order, the trial court allowed the application for amendment of the complaint. The aforesaid order is challenged in this petition filed under Section 482 Cr.P.C.

7. Heard learned counsel for the petitioner and also the first respondent.

8. Learned counsel for the petitioner contended that the amendment of the complaint allowed by the trial court as per Annexure-A6 order is of a substantial character and not a formal one. Learned counsel would contend that the amendment of the complaint would cause serious prejudice to the petitioner/accused in the defence to be adopted in the case.

9. Learned counsel for the respondent submitted that the amendment was sought only to correct the typographical error and clerical mistake committed while drafting the complaint and the trial court was perfectly justified in allowing the amendment of the complaint.

10. There is no specific provision dealing with amendment of complaint in a criminal case. There is also no provision in the Code of Criminal Procedure or in the Act prohibiting amendment of complaint. It is well settled that, even though inherent power saved under Section 482 Cr.P.C is only in favour of High Courts, the subordinate criminal courts are not powerless 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. In such circumstances, in order to do what is absolutely necessary in the ends of justice or to prevent prejudice or miscarriage of justice, what is not prohibited could be taken as permitted. 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 cause prejudice to a party. Inherent powers of courts are in addition to and complementary to the powers specifically conferred on them. But, inherent powers cannot be exercised against ex