TMI Blog2013 (2) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the CPC if there is an admission, it cannot be taken away by the amendment though it may be possible to be clarified by way of amendment, learned counsel for respondent submits. Here, since the particulars required under section 141 of the Act were not incorporated in the complaint, the accused would be entitled to get an order of acquittal. That position cannot be altered by causing amendment to introduce a new plea which was originally not there. It cannot be treated as a correction or a clerical mistake or any such defect that can be cured. The amendment would go to the core of the matter placing the fourth accused in a disadvantageous position which will cause serious prejudice to him. It is a criminal case where the fourth accused can be sentenced to imprisonment also if found guilty – Amendment will cause substantial change in the nature and character of the case causing serious prejudice to the fourth accused. That has got fundamental impact on the defence that can be raised by the fourth accused – Hence such an amendment cannot be permitted at all – This Criminal M.C. is dismissed. - CRL. M.C. NO. 618 OF 2011 - - - Dated:- 4-10-2011 - N.K. BALAKRISHNAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions which are referred to here. In the decision in Madhavi v. Thupran [1987] 1 KLT 488 it was held : "Even though inherent power saved under section 482 of the Code of Criminal Procedure is only in favour of the High Courts, the sub-ordinate 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 justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else". 4. That was a case which was filed claiming maintenance under section 125 of the Cr. P. C. There a clerical mistake was sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment can be allowed or not was not the point in dispute. Since the summons and warrant could not be served or effected, it was found that notice can be effected by substituted service, i.e., by way of paper publication. Since that was only the procedure followed for effecting service of notice to the accused it cannot be said that it has anything to do with the amendment of the complaint which is the gravamen of the dispute in this case. Another decision of the Karnataka High Court in G.N. Raju v. B.S. Jaiprakash [2006] 3 KLT 442 has also been relied upon by learned counsel for the petitioner. That was a case where the contention raised by the accused was that since there was already a civil suit pending with regard to the cheque or the amount covered by the cheque in question, the contention advanced was that because of the pendency of the civil suit, proceedings under section 138 could not have been launched at all. It was held in that decision : "Any cause of action which gives right to the party to approach the court if under law he is entitled to prosecute, it is at his option he can do so. Merely because it opts out to proceed on the criminal side, it does not stop him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if clearly and unequivocally made is the best evidence against the party. The fact that no pleading as required under section 141 of the N.I. Act was made in the original complaint perforce strengthens the case of the fourth accused that he was not in charge of or control over the affairs of the company learned counsel for the respondents submits. V. Satyanarayana's case (supra) referred to above does not in any way help the petitioner. 8. The decision of the Rajasthan High Court in Bhim Singh v. Kan Singh [2004] Crl. LJ 4306 is on the same principle as has been held by this court in Madhavi's case (supra). Here also, the court was only dealing with the inherent power of the court to rectify the mistakes and not with regard to the right to amend the pleadings, so as to incorporate a new plea as is sought to be introduced in this case. 9. Learned counsel for the respondents would rely upon the decision of the Supreme Court in Bindeshwari Prasad Singh v. Kali Singh AIR 1977 SC 2432 where it was held (page 2433) : "Code of Criminal Procedure does contain a provision for inherent powers, namely, section 561A which, however, confers these powers on the High Court and the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourth accused was in charge of and was responsible to the company for its conduct of the business. In Neeraj Cement Structurals (P.) Ltd. v. Bombay J.C.B. [2009] 2 KLD 56, the amendment sought for in a complaint filed under sections 138 and 142 of the N.I. Act was for correcting the name of the bank as Punjab National Bank instead of Veershaiva Co-operative Bank. It was held that since the complainant averred in his complaint that the cheques were drawn on a particular bank and since the plea of the accused was recorded by the court, no amendment could have been allowed at a later stage. Learned counsel for the petitioner submits that, it may indicate that if the amendment application is filed before starting of the trial, no prejudice would be caused to the accused. First of all, it is not a case where certain clerical mistakes inadvertently occurred or crept in which are sought to be corrected by way of amendment. A new plea in order to fasten the criminal liability on the fourth accused is sought to be introduced by way of amendment. In Pepsico India Holdings (P.) Ltd.'s case (supra), cited supra it was also held : "There can be no doubt that an amendment of the nature sought ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
