1. The applicant has filed this petition under section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 21.2.2013 passed by learned Additional Chief Judicial Magistrate, Gwalior in Criminal Complaint Case No.6394/2007 whereby name of the applicant was added as an accused in the complaint filed for the offence under section 138 of Negotiable Instruments Act.

2. Facts of the case in short are that one shop was taken on rent by M/s. Excel Telecom, 2/179 New Colony Birla Nagar, Gwalior and a cheque of Rs.35,000/- relating to rent of that shop was tendered by the applicant to the respondent. The cheque was dishonoured, thereafter respondent prosecuted the aforesaid partnership firm through its partner Deepak Gupta and Sanjeev Basu. After sometime, it was found that the concerned firm was not a partnership firm but it was a sole proprietary concern run by the applicant, therefore such application was moved before the trial Court which was dismissed vide order dated 6.11.2008.

3. On filing of petition before this Court, vide order dated 8.5.2012 the matter was disposed off by consent of parties that a fresh application be moved by the respondent and the trial Court shall decide the same according to the provisions of law.

4. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, an accused can be added in a case when the trial Court has taken cognizance in the case under the provisions of section 319 of CrPC. However, it is a case of 138 of Negotiable Instruments Act and the complaint can be filed against an accused if a valid demand notice has been given to that accused and payment was not made by him. In the present case, M/s. Excel Telecom may be a proprietary firm or a partnership firm, no notice has been given to the applicant either in his personal capacity or being proprietor of the aforesaid firm and when no demand notice was given within the time fixed under section 138 of Negotiable Instruments Act then no complaint can be prosecuted against the applicant.

5. In the light of the provision of section 138 of Negotiable Instruments Act when the complaint could not be prosecuted against the applicant then he could not be added as an accused in the complaint by moving a simple amendment application. The trial Court has no power to pass such order as the inherent powers are vested in High Court under section 482 of CrPC. I am unable to understand under which provision the trial Court has accepted the application. The liberty was given by the Single Bench of this Court that a fresh application be moved for amendment before the trial Court but it was mentioned that the application should be decided according to the provisions of law and there is no provision of such amendment in the CrPC. The trial Court could not pass such order when it has no inherent power under section 482 of CrPC.

6. Learned counsel for the petitioner has placed his reliance upon the judgment passed by the apex Court in the case of “S.R. Sukumar V. S. Sunaad Raghuram”, (2015 CriLJ 3829). In this judgment, the authority of trial Court has been emphasized as to whether the amendment in the complaint may be done or not. In the light of that judgment passed by the apex Court in the case of S.R. Sukumar (supra), such amendment could not be allowed in the present petition without any prescribed power of CrPC specifically when no demand notice was given to the applicant.

7. On the basis of aforesaid discussions, the impugned order passed by the trial Court appears to be perverse and when the complaint was not maintainable against the applicant for the offence under section 138 of Negotiable Instruments Act, he could not be made an accused in the case. It is a good case in which the inherent power of this Court conferred under section 482 of CrPC can be invoked in favour of petitioner.

8. Consequently, the petition under section 482 of CrPC filed by the applicant Sandeep