Madras High Court
S. Elango vs K. Subbarayan on 1 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.29885 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.09.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.29885 of 2019
and
Crl.M.P.No.16106 of 2019
S. Elango ... Petitioner
Vs.
K. Subbarayan ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code, to call for the records of the learned Judicial Magistrate
No.1, Namakkal dated 05.07.2019 made in CMP.No.8774 of 2018 in
C.C.No.181 of 2015 and set aside the same.
For Petitioner : Mr. N.S. Suganthan, (Amicus curiae)
Government Advocate (Crl.Side)
For Respondent : No Appearance
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https://www.mhc.tn.gov.in/judis
Crl.O.P.No.29885 of 2019
ORDER
The accused in a private complaint, being aggrieved by the order of the trial Court, allowing the application, by the complainant to amend the complaint is before this Court, challenging the order under Section 482 of Cr.P.C.
2. According to the petitioner, there is no provision in Criminal Procedure Code to amend a private complaint. While so, the order impugned is without power and without any reason, except to say that the accused has not filed counter, alleging that by amending the complaint, the case of the complainant is totally altered and the application for amendment was filed subsequent to the commencement of trial and after examination of witnesses. Therefore, the said order is liable to be quashed.
3. Learned counsel appearing for the petitioner has filed a memo stating that the petitioner has cancelled the vakalath and he no more represents the petitioner.
2/7 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29885 of 2019
4. In view of the legal point raised in the petition, this Court sought the assistance of Mr.N.S.Suganthan, learned Government Advocate(Crl.Side), to elucidate whether there is any bar in entertaining an application to amend a private complaint. Mr.N.S.Suganthan, learned Government Advocate has circulated the recent judgment of the High Court of Madhya Pradesh, dated 26.07.2022, wherein, after considering the provisions of law and the judgment of the Hon'ble Supreme Court in U.P. Pollution Control Board Vs. Modi Distilleries, reported in (1987) 3 SCC 684 and S.R.Sukumar Vs. S.Sunaad Raghurav, reported in (2015) 9 SCC 609 submitted that the Madhya Pradesh High Court, held that to entertain petition to amend a private complaint, there is no bar under Cr.P.C. At the same time, there is no provision under the Code to entertain amendment petition unlike CPC where Order 6 Rule 17 permits petition for amendment.
5. The learned Amicus curiae submitted that the caveat to entertain petition to amend is the amendment sought must be with regard to infirmity which is curable by means of a formal amendment and the same does not cause any prejudice to either of the party. 3/7 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29885 of 2019
6. The present case the fact regarding the co-borrower and the cheque number sought to be amended. The trial Court taking note of the fact that the issuance of cheque is not denied, the signatory of the cheque alone is made as an accused, even though, it is pleaded that one Rathinam is a co-borrower. The acknowledgement of receiving the money by the accused and his co-borrower, Rathinam alone is sought to be brought on record byway of amendment.
6(i). By allowing the amendment petition, the nature of the complaint is not altered. The circumstances under which the loan was advanced alone is now been sought to be introduced by way of the amendment. The respondent herein has not denied about the issuance of cheque bearing No.069422 dated 09.07.2014 for Rs.68,000/- drawn by him in favour of the complainant. Therefore, the observation of Hon'ble Supreme Court in S.R.Sukumar Vs. S.Sunaad Raghurav, reported in (2015) 9 SCC 609, which reads below applies to the facts of this case:- 4/7
https://www.mhc.tn.gov.in/judis Crl.O.P.No.29885 of 2019 “if the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the 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 a formal amendment or if there is liklihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint.”
7. This Court is of the view that no prejudice will cause to the respondent by allowing the amendment and he will have every right to dispute the said averment by cross examining the witnesses.
8. As a result, the petition is dismissed, as devoid of merits. Consequently, connected miscellaneous petition is closed. 5/7 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29885 of 2019
9. This Court records its appreciation to Mr.N.S.Suganthan, learned Government Advocate(Crl.Side), who rendered assistance to the Court to solve the legal issue that arose in this Criminal Original Petition.
01.09.2022 AT Internet : Yes Index : Yes/No Speaking / Non-speaking To The Judicial Magistrate No.1, Namakkal.
6/7 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29885 of 2019 Dr.G.JAYACHANDRAN,J.
AT Crl.O.P.No.29885 of 2019 and Crl.M.P.No.16106 of 2019 01.09.2022 7/7 https://www.mhc.tn.gov.in/judis