TaxTMI 
TaxTMI 
2017 (4) TMI 1615
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.... of the cheque on the ground of insufficiency of funds. Thereafter, the complainant had complied with the requisite statutory formalities for the initiation of the complaint and had taken steps for instituting the above complaint as per Anx. A-1, which was taken on file as C.C. No. 632/2010 on the file of the Judicial First Class Magistrate Court-II, Palakkad. In para 2 of Anx. A-1 complaint, it is averred that towards settlement amount of kuri deposited by the complainant, the accused has issued cheque bearing No. 007554 dated 29/05/2010 for a sum of Rs. 94,291/- drawn from the HDFC Bank Ltd., Palakkad Branch, payable in favour of the complainant for settlement amount of kuri deposited with the accused. But it is to be noted that in the said paragraph No. 2 it is not averred with clarity as to which among the accused issued and signed the cheque in question. However, in para 6 of Anx. A-1 complaint, it is stated that ".........the cheque was issued by the 2nd accused in the presence and at the instance and direction of the other accused...............". Accused No. 2 (R-3 herein) happens to be one Sri P.V. Sudhakaran, who is stated to be the Managing Director of the accused No. 1 ....
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....rieved by Anx. A-4 order, the petitioner has preferred revision petition before the Sessions Court, Palakkad. The Sessions Court as per the impugned Anx. A-5 order rendered on 03/09/2015 has also rejected the said plea of the petitioner. The Sessions Court mainly placed reliance on the decision reported in Linda John Abraham v. Business India Group Company & Ors. reported in 2011 (4) KHC 587 : 2011 (4) KLT 787 : 2011 (4) KLJ 714 : 2012 (2) Crimes 431 wherein it was held that the amendment which causes serious prejudice to the accused cannot be allowed. However, as regards the plea for correcting the mistake in the averments in the proof affidavit, Sessions Court held that such a plea for amending the proof affidavit, which is nothing but the chief examination of the complainant cannot be considered but that the complainant should be permitted to adduce further evidence to speak out his case as how the mistake occurred and it is for the learned Magistrate to decide the question of admissibility of such evidence and dispose of the case in accordance with law and these orders at Anxs.A-4 and A-5 are under challenge in this Crl. M.C. The petitioner has sought to set aside the impugned ....
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.... V. Radhakrishnan, Director of the company, who is none other than Accused No. 4. Incidentally, it is also pointed out that though accused No. 4 (R-5 herein) is one Sri P.V. Radhakrishnan, the said party has only subscribed his name as V. Radhakrishnan, presumably after excluding the initial 'P' which is reflecting the family surname. That the said averments in para 6 of Anx. A-1 complaint was made inadvertently while drafting the complaint and the fact that it is nothing but a plain clerical or typographical mistake is also evident from the fact that the cheque produced along with the complaint will show that the signatory is not accused No. 2 (P.V. Sudhakaran) but Sri V. Radhakrishnan (who is accused No. 4). The said mistake was carried out while drafting and submitting proof affidavit of the complainant and that immediately on realising the said mistake the petitioner filed application for correction/amendment as borne out by Anx. A-2. So the only issue to be posed before this Court is as to whether the said mistake is a clerical or typographical mistake as contended by the petitioner and whether such a mistake could be corrected or amended in spite of absence of explici....
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....rant relief cannot be accepted. When parties had no dispute that first petitioner is Madhavi, the wife of the respondent and mother of the minors, how can the Court refuse relief on the technical ground that a wrong name is given in the petition. Courts are existing for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand. Even though inherent power saved under Section 482 of the Cr.P.C. is only in favour of High Courts, the subordinate Criminal Courts are also not powerless in cases like this 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. Under such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations. All the Criminal Courts are having such an auxiliary power subject to restrictions which ....
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....s been brought about by the industrial unit viz. Modi Distillery of Modi Industries Limited because in spite of more than one notice being issued by the Board, the unit of Modi Distillery deliberately failed to furnish the information called for regarding the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company. Having willfully failed to furnish the requisite information to the Board, it is now not open to the Chairman, Vice Chairman, Managing Director and other members of the Board of Directors to seek the Court's assistance to derive advantage from the lapse committed by their own industrial unit. The learned Single Judge has focused his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in para 2 of the complaint so as to make the controlling company of the industrial unit ....
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....141 of the N.I. Act. Later on, the complainant submitted an application for amendment introducing a new plea that accused 2 to 4 were persons in charge of and responsible for the conduct of the business of the company. The application for amendment was dismissed by the Trial Court which was challenged before this Court. This Court also dismissed the said plea stating that where there is no averment in the complaint that accused No. 4 was in charge of and responsible to the company for the conduct of its business, petition for amendment incorporating averments that he was responsible for conduct of its business cannot be permitted as it would cause serious prejudice to such accused, against whom necessary averments were not raised in the original complaint. This Court held that the said new plea cannot be treated as correction of a clerical mistake. It was held that in the absence of specific plea against accused No. 4 that he was in charge of and responsible for the affairs of the conduct of the business of the company, he could have got a clean acquittal merely due to the absence of such necessary pleadings. Therefore, such pleadings so as to include the name of accused No. 4 for ....
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....since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused and that the amendment did not change the original nature of the complaint being one for defamation, etc. Accordingly, the Apex Court declined to interfere with the order passed by the learned Magistrate. Therefore, it is seen that even that where the amendment sought is a substantial one, such an amendment could be allowed by the Trial Court so long as it is before the taking of the cognizance and before the issuance of the summons to the accused, etc. But a reading of the said judgment in Sukumar's case (supra) would make it clear like the day light that though the amendment proposed is not a formal amendment, but a substantial one, the Magistrate can allow the amendment application on the ground that no cognizance was taken of the complaint before the disposal of the amendment application, in the absence of explicit provisions in that regard in the Cr.P.C. It will be profitable to refer to paras 18 to 20 of the decision in S.R. Sukumar v. S. Sunaad Raghuram reported in (2015) 9 SCC 609 : 2015 KHC 4424 : 2015 (3) KHC SN 15 : 2015 (2) KLD 100 : 2015 (3) KLT 382 : 2015 (....
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....ormal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint. 20. In the instant case, the amendment application was filed on 24/05/2007 to carry out the amendment by adding Paras 11(a) and 11(b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, the Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem Khalnayakaru being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore, to avoid multiplicity of proceedings, the Trial Court allowed the amendment applic....
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....d the Managing Director (A-3) of the Company. There was no averment in the original complaint that accused No. 4 was in charge of and responsible for the affairs of the conduct of the company. It was much later, an application for amendment was filed before the Criminal Court for introducing an amendment in the averments of the complaint that accused No. 4 was in charge of and responsible for the affairs of the company. It has been clearly held by the Apex Court in various rulings as in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr. reported in (2005) 8 SCC 89 : 2005 KHC 1468 : 2005 (4) KLT 209 : AIR 2005 SC 3512 : 2005 (2) KLD 554 : 2005 Cri.L.J. 4140 that for maintaining allegations of culpability against accused-Directors of a company in complaints filed under Section 138 of the N.I. Act r/w Section 141 of the N.I. Act, there should be clear and necessary averments in the complaint that such co-accused Director was in charge of and responsible for the affairs of the business of the company as envisaged in Section 141 of the N.I. Act. However, it was also held therein that such averments are not necessary in the case of Managing Director and Joint Managing Director of the com....
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....xplanation.-- For the purposes of this Section,-- (a) "company" means anybody corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm.' Therefore, this Court has clearly held in Linda John Abraham's case (supra) that permitting such an amendment which causes serious prejudice to such an accused is not within the competence of the Criminal Court. Whereas the facts in this case are entirely different. A reading of para 6 of the impugned complaint as well as Anx. A-6 dishonoured cheque, which has been produced along with the complaint itself, would show that the averments in para 6 of the complaint are typographical or clerical mistake. All that the petitioner seeks is for correcting the word "2nd accused" appearing in para 6 of the complaint as "4th accused". The petitioner does not even seek to incorporate a new plea that accused No. 4 was in charge of and responsible for the affairs of the business of the company. This appears presumably because the Three Judge Bench judgment in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr. reported in (2005) 8 SCC 89 : 2005 KHC 1468 : 2005 (4) KLT 2....
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....1 p. 792-793 has stated that it has been held in Pepsico India Holdings (P) Ltd. v. Food Inspector reported in 2010 (4) KLT 706 (SC) : 2010 (4) KHC 767 : ILR 2011 (1) Ker. 85 : (2011) 1 SCC 176 : 2011 (2) KLJ 220 : 2011 Cri. L.J. 1012 : 2011 (161) Comp Cas 197 : 2011 (1) SCC (Cri.) 8 : 2011 (98) AIC 156 : 2011 (1) ECrN 504 as follows: "There can be no doubt that an amendment of the nature sought by respondent No. 1 herein cannot be permitted. The complainant had averred in his complaint that the cheques were drawn on a particular bank. The verification has also been recorded and process has been issued. Further, the plea of the accused has also been recorded. No amendment could have been allowed in the complaint at this stage. Besides, the change of the name, in my opinion, results in a substantial change in the complaint and, therefore, such an amendment cannot be allowed." But a reading of the Apex Court judgment in Pepsico's case (supra) reported in 2010 (4) KLT 706 : 2010 (4) KHC 767 : ILR 2011 (1) Ker. 85 : (2011) 1 SCC 176 : 2011 (2) KLJ 220 : 2011 Cri. L.J. 1012 : 2011 (161) Comp Cas 197 : 2011 (1) SCC (Cri.) 8 : 2011 (98) AIC 156 : 2011 (1) ECrN 504 would clearly sho....