TMI Blog2017 (4) TMI 1615X X X X Extracts X X X X X X X X Extracts X X X X ..... GH COURT OF KERALA ] are quite distinct and different from the one dealt with in the present case. In that case accused No. 1 was the company and its Chairman (A-2), Managing Director (A-3) and Director (A-4) were arrayed as accused Nos. 2, 3 4 respectively. The cheque in question was issued and signed by the Chairman (A-2) and 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. This Court has clearly held in Linda John Abraham's case 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 company. The cheque in question was also produced along with the complaint as can be seen from the last page of Anx. A-1 complaint. A copy of the said cheque has been made available in this proceedings as Anx. A-6 and a perusal of the said cheque shows that the cheque is issued for and on behalf of accused No. 1 company [Sree Lakshmi Kuries and Loans (P) Ltd.], and the signatory of the cheque as can be seen from the seal appended thereto is one Sri V. Radhakrishnan, Director of the said company. Accused No. 4 (R-5 herein) is one P.V. Radhakrishnan, who is stated to be the Director of the company. It also happened that the petitioner-complainant had tendered proof affidavit in lieu of his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mending 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 orders and for orders from this Court to direct the Trial Court to allow the said plea for correction/amendment. 2. Though notice on this petition has been duly taken out on respondents 2 to 5, said notices were returned with endorsement refused and therefore notice to those parties are only to be treated as duly completed. However, there is no appearance for those parties. 3. Heard Sri L. Rajesh Narayan Iyer, learned counsel appearing for the revision petitioner and Sri Saigi Jcob palatty, learned Prosecutor appearing for R-1 State. 4. One of the pleas made by the petitioner is for correction/amendment of the averments in the proof affidavit. The proof affidavit submitted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n) 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 explicit provisions in that regard in the Cr.P.C. It is not in dispute that there are no explicit provisions nowhere in the Cr.P.C. envisaging submission of application for amendment/correction of such a mistake. This Court in the judgment in Madhavi v. Thupran reported in 1987 KHC 150 : 1987 (1) KLT 488 : 1987 KLJ 737 has dealt with a similar issue and has held that '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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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. 7. Correcting a mistake in the name for the purpose of doing justice is within the competence of any Criminal Court. Even in criminal cases during investigation, enquiry or trial we find wrong names being deleted and correct names included or substituted and mistakes corrected. That is something necessary in the ends of justice to avoid a wrong person being prosecuted or punished or to enable an offender being brought to justice. What is prohibited under Section 362 of the Code itself is only altering or reviewing judgment or final order disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial 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 figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. Although as a pure proposition of law in the abstract the learned Single Judge's view that there can be no vicarious liability of the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors under sub-section (1) or (2) of Section 47 of the Act unless there was a prosecution against Modi Industries Limited, the company owning the industrial unit, can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the first time and that too by subsequently incorporating such averments alleging his role would amount to serious prejudice to such an accused and that such a plea for amendment which imposes serious prejudice to accused at such a subsequent stage cannot be permitted by the Criminal Court. 8. The Apex Court has also recently considered the scope for amendment of averments in a criminal complaint in the judgment 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 (3) KLJ 552 : AIR 2015 SC 2757 : 2015 Cri.L.J. 3829. Their Lordships in para 16 of Sukumar' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (3) KLJ 552 : AIR 2015 SC 2757 : 2015 Cri. L.J. 3829 pp. 620 621, which read as follows: '18. Insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. 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 application. Considering these factors which weighed in the mind of the Courts below, in our view, the High Court rightly declined to interfere 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.' Therefore, going by the legal principles laid down by the Apex Court, more particularly in the decision reported in U.P. Pollution Control Board's case (supra) reported in (1987) 3 SCC 684 : 1987 KHC 1054 : 1987 SCC (Cri.) 632 : AIR 1988 SC 1128 : 1988 Cri. L.J. 1112 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 company as well as signatories of the dishonoured cheque in question because they would be liable by virtue of the very position that they hold. Therefore, in the case of Directors and other Officials of the company other than Managing Director/Joint Managing Director/authorised signatory of the cheque, there should be necessary averments as stated above in the absence of which the complaint should not be proceeded against such Directors/Officials of the company. The cheques in question were issued and signed by accused Nos. 2 3 therein (Chairman and Managing Director of the company). Therefore, this Court clearly held that introducing su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 209 : AIR 2005 SC 3512 : 2005 (2) KLD 554 : 2005 Cri.L.J. 4140 has clearly held in para 19(c) thereof that the signatory of a cheque which is dishonoured is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141. Para 6 of Anx. A-1 complaint cannot be said to cause any serious prejudice on accused No. 4 as the dishonoured cheque produced along with the complaint itself would make it clear like the day light about the clerical mistake. It is not as if the petitioner had developed entirely a new and different case from the one projected before the Trial Court at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 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 show that the above quoted observations do not pertain to the said judgment of the Supreme Court. As a matter of fact the above quoted observations are that of a learned Single Judge of the Bombay High Court in para 4 of Neeraj Cement Structures Pvt. Ltd. Anr. v. Bombay J.C.B. Earth Movers Anr. reported in 2009 (2) KLD 56 : 2009 KHC 574 : 2009 (2) ABR (NOC) 221 (Bom) [which has been mentioned in para 13 of Linda John Abraham's case reported in 2011 (4) KLT 787 : 2011 (4) KHC 587 : 2011 (4) KLJ 714 : 2012 (2) Crimes 431. The above said observations of a learned Single Judge of the Bombay High Court shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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