TaxTMI 
TaxTMI 
TaxTMI 
2012 (10) TMI 1248
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the accused/present petitioner from "Amol Trilokchand Shaha" to "Amol Shripal Seth". The Magistrate had already issued process against the accused when the amendment was allowed. 2. The complainant has contended that the present petitioner was Chairman of the partnership firm, accused No. 1. It is contended that accused No. 3 was working as a Director and accused No. 4 was the Officer authorized by accused No. 1 concern, to sign the cheques. It is the case of the complainant that the accused Nos. 2 to 4 are responsible for conducting the business of accused No. 1 concern as they were doing acts like purchasing goods, preparing bills and making payments in respect of the goods purchased for accused No. 1. The complainant had issued a statutory notice in this case after receiving the bank note in respect of dishonour of cheque, but the reply was not given in R.C.C. No. 315/2003. It is contended that the notice was received on 14.2.2003. 3. In the statutory notice, the complainant had given the name of present petitioner as "Amol Trilokchand Shaha". The Revisional Court has held that the complainant probably did not know the correct name of this accus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isions is achieved. 5. For the present petitioner, reliance was placed on the case reported as 2003 Bom. C.R. (Cri.) 1769 Bombay High Court [Behram S. Doctor Vs. State of Maharashtra and Anr.]. In this case, in a matter filed under section 138 of N.I. Act, the name of the original accused was changed by allowing the amendment from "B.S. Dastoor" to "Behram S. Doctor". this Court held that the complaint as against Behram S. Doctor was not within limitation as provided in section 468 of Cr.P.C. It is observed that it was not possible to introduce the amendment after three years from the date of cause of action for filing the complaint. this Court further held that the Magistrate has no power to allow the amendment of the complaint. More cases were cited for the present petitioner like (ii) 2000 CRI.L.J. 1579 (1) Madras High Court [Vinayagam and others Vs. Dr. Subhash Chandran and etc.], (iii) 2009 (2) ALL MR (JOURNAL) 61 Madhya Pradesh High Court [Sunderdev Vs. Yogesh]. In these cases, similar observations are made by these two High Court. Two more cases like 1998 (7) SCC 698 [Ashok Chaturvedi Vs. Shitul H. Chanchani] and 2008 (13) SCC 689 [Subodh S. Salaskar Vs.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f person who has committed the offence in the complaint. 9. In the case of 2006 CRI.L.J. 788 (Supreme Court), [Mohd. Yousuf Vs. Smt. Afaq Jahan & Anr.], the Apex Court has laid down that there is no particular format for complaint. A petition containing allegations that the offence has been committed and ending with a prayer that the culprits be suitably dealt with, can be treated as a complaint. In the case reported as MANU/SC/0097/1970 : AIR 1970 SC 1153 [Bhimappa Basappa Bhau Sannavar Vs. Laxman Shivarayappa Samagouda and Ors.], the Apex Court has laid down that to come within the purview of section 2 (d) of Cr.P.C., the complaint is to fulfill following conditions. (i) An allegation is made orally or in writing, (ii) This allegation reveals that some person, known or unknown, has committed the offence, (iii) Such allegation is made to Magistrate, (iv) The purpose of allegation is that the Magistrate should take action under the law. 10. Section 190 of Cr.P.C. provides that the Magistrate can take cognizance of an offence in three ways mentioned. This section falls under Chapter XIV of Cr.P.C., which is titled as "CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS....
X X X X Extracts X X X X
X X X X Extracts X X X X
....before such Magistrate or if he has no jurisdiction himself some other Magistrate having jurisdiction. 13. The aforesaid provisions of Cr.P.C. shows that during inquiry, which can be made by a Magistrate under section 202 of Cr.P.C. and during investigation which can be directed under same section, it is necessary to ascertain, who has committed the offence. The Magistrate takes cognizance of the offence as provided under section 190 of Cr.P.C. and the definition of "complaint" given in section 2 (d) of Cr.P.C. and the Magistrate does not take the cognizance of offender under these sections. It is not that the powers to ascertain the offender mentioned in section 202 and 204 of Cr.P.C. come to an end after making the order of issue process under section 204 of Cr.P.C. 14. Section 319 of Cr.P.C. shows that the Criminal Court has the power to proceed against person other than the accused, if it appears from the evidence that other person not being the accused, has committed any offence for which he needs to be tried in the case already before the Court. In the case reported as MANU/SC/3638/2008 : (2008) 9 SCC 140 [Bholu Ram Vs. State of Punjab and Anr.], the Apex Court ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en to establish the identity of accused and involvement of the accused in the crime is always on the prosecution and the opportunity to establish both the things cannot be taken away from the prosecution, if there is such defect. Thus, in one way, it can be said that the accused does not get any benefit due to such defect. Then, the question arises as to what needs to be done or what can be done in such cases to correct such mistake. 16. It is not disputed that there is no specific provision dealing with the amendment of the complaint. There is also no provision preventing the Court from allowing the amendment in complaint in such a case. From the aforesaid provisions and particularly, the fact that the Magistrate takes cognizance of the offence, this Court holds that the Magistrate has incidental and ancillary power to the main power of taking cognizance of offence to allow such amendment. In view of the discussion made above, this Court further holds that the power can be exercised before and after taking cognizance of the offence in a case like present one. 17. As the provisions of Special Enactment viz. N.I. Act can supersede the general provisions of Cr.P.C., let us see whet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fect and only after that the court can proceed against them. 18. The complainant being stranger to the company, may not have the knowledge about the management or affairs of the company. Section 138 (b) of N.I. Act shows that statutory notice needs to be given to the drawer of the cheque, to the company. In view of this circumstance, the Director receiving notice for the company or other office bearer receiving notice for the company, is expected to give the name of person incharge and responsible for the conduct of the business of company. If the office bearer receiving notice prefers to give the reply to statutory notice, it is not sufficient for him to only deny the responsibility, but it becomes necessary for him to say something on behalf of the company about the person who can be held responsible in view of the aforesaid provision. It is already observed that in view of the proviso to section 141 (1) of N.I. Act, the burden is on the office bearer like the Managing Director to give such information, so that he can show that the offence was committed without his knowledge. These are the provisions of Special Enactment viz. N.I. Act and they are not inconsistent with the gener....