2017 (9) TMI 2061

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....or the petitioner/accused, Sri. P. Venugopal, learned counsel appearing for R1/complainant and Sri. Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 3. The first respondent/complainant had filed Annexure-A1 complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act in which the petitioner herein had arrayed as accused. According to the averments in Annexure-A1 complaint, the first respondent had advanced an amount of Rs.2,00,000/- to the accused on the latter's request and on condition that it should be repaid as and when demanded and that on discharge of the said liability, the instant cheque dated 3.1.2011 was executed by the petitioner in favour of the complainant and the same was handed over to the complainant on the same day. Since the first respondent was working abroad in a Gulf country, he had caused the filing of Annexure-A1 complaint through his authorised power of attorney holder. There was no averment in Annexure-A1 complaint that the said power of attorney holder was having direct knowledge about the said transaction between the complainant and the accused. 4. It appears that Annexure A1 complaint was filed on 03.....

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....hich reads as follows: " This is an application to allow the petitioner/complainant to amend the complaint by adding the fact that he had personal knowledge of the transaction which is the subject matter of the above case. 2. Respondent/Accused has filed counter opposing the prayer. 3. Both sides are heard. 4. Here, the proposed amendment is for adding the fact that the Power of Attorney Holder had personal knowledge about the transaction in question. According to the petitioner/complainant he had personal knowledge regarding the entire transaction and it was omitted to be stated in the complaint due to oversight. 5. It is true that an explicit assertion as to knowledge of power of attorney holder about the transaction in question must be specified in the complaint. Here, such an assertion is absent in the complaint and the complainant seeks permission to allow him to amend the complaint. On perusal of entire records, it is seen that, PW1 has withstood the thorough cross-examination by the defence counsel, and his evidence in toto, shows that he had knowledge about, every minute, details of the transaction in question. Hence, I ....

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.... Distillery owned by it and could be deemed to be guilty of the offence with which they are charged. The learned Single Judge has failed to bear in mind that this situation has been brought about by the industrial unit viz. Messrs Modi Distillery of Messrs Modi Industries Limited because in spite of more than one notice being issued by the Board, the unit of Messrs 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 wilfully 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 focussed 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 Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judici....

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....the criminal court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by way of formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint. 8. In the facts of the case in S.R. Sukumar's case (supra) it was found by the Apex Court that the application for amendment was filed on 24.05.2007 to carry out an amendment by adding two sub paragraphs to Para 11 and though the proposed amendment was not a formal amendment, but a substantial one, the Magistrte had allowed the amendment application mainly on the ground that no cognizance was taken on the complaint before the disposal of the amendment application. In this view of the matter the Apex court held that since the Magistrate was yet to apply judicial mind to the contents of the complaint and had not taken cognizance of the matter and since summons was yet to be ordered, no prejudice could be caused to the accused and thirdly the amendment did not change the original nature of the complaint etc. In the light of these as....

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.... with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution." 9. Thus the legal position that emerges is that where the amendment involves only correction of typographical or clerical errors, the same could be entertained by the criminal court not withstanding the absence of explicit powers in that regard purported on that court. Even in a case where the amendment is not a formal one but a substantial one the criminal court could allow the plea for amendment if no cognizance is taken on the complaint and it does not cause any serious prejudice to the accused and it does not change the original nature of the complaint etc. The law in this regard has also been elaborated in the judgments of this Court in cases in Linda John Abraham v. Business India Group Company and others reported in 2011 (4) KLT 787 = 2011 (4) KHC 587, Hafsa Rahman. T. v. State of Kerala and others reported in ILR 2017 (2) Kerala 995 = 2017 (3) KHC 49 etc. 10. On evaluation of the factual scenario available in this case, it is only to be h....