Presence of curable infirmities in complaints allows amendments; substantial amendments can cause prejudice.

ORDER

The petitioner is the complainant in S.T.No.268 of 2019 on the file of the Court of the Judicial Magistrate of First Class-II, Perambra (in short, 'Trial Court'), which has been filed against the 1^st respondent alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act (for brevity, 'Act').

2. The petitioner has stated in the criminal miscellaneous case that, in the cross-examination of DW1 (the Assistant Manager of the drawee bank), he testified that the cheque was not that of the 1^st respondent, but her husband. Accordingly, the petitioner filed an application seeking leave to implead the 1^st respondent's husband as an additional accused and for the consequential amendment of the complaint. The 1^st respondent opposed the application. By the impugned order, the Trial Court dismissed the application. The impugned order is ex facie erroneous and unsustainable in law.

3. I have heard Sri. Krishna Mani B., the learned counsel for the petitioner, the learned counsel for the 1^st respondent and the learned Public Prosecutor.

4. The petitioner has filed the complaint specifically asserting that the 1^st respondent had issued a cheque for Rs.7,00,000/- in discharge of a legally enforceable debt. However, the cheque, upon presentation to the bank, was dishonoured for insufficiency of funds in the 1^st respondent's bank account. Although the petitioner issued a statutory notice demanding payment of the cheque amount, the 1^st respondent has failed to pay it. Therefore, the 1^st respondent has committed the offence punishable under Section 138 of the Act.

5. In the application seeking leave to amend the complaint, the petitioner states that it was only during the cross-examination of DW1 that the petitioner learnt that the cheque was not that of the 1^st respondent, but of her husband. Hence, the petitioner seeks to implead the 1^st respondent's husband as an additional accused and carry out consequential amendments to the complaint.

6. Unlike the Code of Civil Procedure, there is no specific provision either in the Code of Criminal Procedure (‘Cr. P.C’), the Bharatiya Nagarik Suraksha Sanhita (‘ BNSS ), or the Act permitting or prohibiting the amendment of a complaint. It is well settled that, even though the inherent power under Section 482 Cr.P.C. or 528 is saved only in favour of High Courts; the Criminal Courts of the District Judicature are not denuded of power to do what is necessary for the dispensation of justice in the absence of a specific enabling provision, provided there is no prohibition and no illegality or miscarriage of justice. Therefore, to meet the ends of justice or to prevent prejudice or miscarriage of justice, what is not prohibited can be taken as permitted. Nevertheless, such inherent power has to be exercised judiciously and not arbitrarily or capriciously (Read the decisions of this Court inMadhavi v. Thupran [1987 KHC

150] and Aliyar v. Pathu [1988 KHC 475]).

7. The question whether a criminal court has the power to order the amendment of a complaint is no longer res integra. In S.R. Sukumar v. S. Sunaad Raghuram [ (2015) 9 SCC 609 ], the Hon’ble Supreme Court has held as under:

“19. What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that