The vicarious liability of partners cannot be asserted in a criminal complaint without including the partnership firm as an accused, altering the core of the complaint.

1. In this criminal application, filed under Section 482 of the Code of Criminal Procedure , 1973, challenge is to the order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha, whereby learned Magistrate allowed the application (Exh.65) in Cri. Complaint Case No. 517 of 2008, made by the complainants seeking amendment to the complaint filed under Section 138 of the Negotiable Instruments Act , 1881 (hereinafter referred to as “the N.I. Act” for short).

2. The facts relevant for the decision of this application may be stated thus :

The applicants are the accused and the non-applicants are the complainants. They would be referred by their nomenclature in the complaint. The original complainant was Syed Mazaruddin. He died on 19.08.2008 during pendency of the complaint. His heirs, the present complainant nos.1 to 4, are allowed to prosecute the complaint. The deceased complainant had agreed to sell his land to accused nos. 1 to 4. The accused issued a cheque bearing No. 434268 dated 30.10.2007 for Rs.5,00,000/-, drawn on the account of the firm maintained with the Yavatmal Urban Cooperative Bank Ltd., Ralegaon Branch. The deceased complainant presented the cheque for encashment through his bank namely Central Bank of India, Darwha. The bank informed the deceased complainant that the cheque was dishonoured on the ground that “the drawer had stopped the payment”. The deceased complainant issued notice dated 03.04.2008 to the accused. It is stated that despite receipt of the notice, the accused did not pay the amount. Therefore, the deceased complainant filed the complaint.

3. Learned Magistrate took cognizance of the offence and issued process against the accused persons. The complaint was fixed for recording of the evidence. The complainants at that time made an application at Exh.65 for amendment. The proposed amendment was set out in paragraph 2 of the application. The sum and substance of the amendment application was that the relevant facts with regard to the vicarious liability of accused nos. 1 to 4 remained to be pleaded due to oversight. It was also stated in the said application that accused nos.1 to 4 being the Partners of the firm, are responsible for the conduct of day-to-day business of the firm and as such they are vicariously liable.

4. This amendment application was opposed by the accused persons. According to them, the amendment application was not maintainable. The application was mala fide. There is no provision to entertain an application for amendment of a criminal complaint.

5. Learned Judicial Magistrate, First Class, by granting opportunity of hearing to the parties, was pleased to allow the application for amendment, holding that the amendment was of a formal nature. The application was maintainable. The proceeding under Section 138 of the N.I.Act is a quasi civil in nature. It was further held that the amendment would not cause any prejudice to the accused persons. Being aggrieved by this order, the accused have come before this Court under Section 482 of the Cr.P.C.

6. I have heard Mr. M. M. Agnihotri, learned advocate for the applicants/accused and Mr. Raheel J. Mirza, learned advocate for the non-applicants/complainants. Perused the record and proceedings.

7. Learned advocate for the accused submitted that by the proposed amendment the very core and crux of the complaint has been changed. Learned advocate pointed out that the amendment was not intended to remove any curable defect or infirmity in the complaint and as such the order granting amendment has caused severe prejudice to the accused persons. Learned advocate further submitted that before filing the complaint, notice was not issued