Kerala High Court
Shakkira Aboobacker vs U.Chekkutty on 28 January, 2015
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY,THE 22ND DAY OF SEPTEMBER 2017/31ST BHADRA, 1939
Crl.MC.No. 887 of 2015 ()
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CMP.NO.9893/2014 IN ST.NO.125/2011 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT-1, TIRUR
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PETITIONER/ACCUSED:
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SHAKKIRA ABOOBACKER, W/O.ABOOBACKER,
VALIYIL HOUSE, VATTAMKULAM, CHAIRPERSON,
USHUS EDUCATION TRUST, P.O.VATTAMKULAM,
EDAPPAL, MALAPPURAM DISTRICT.
BY ADV. SRI.P.JAYARAM
RESPONDENT(S):
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1. U.CHEKKUTTY, S/O.KUNHIMOHAMMED,
OOROTTUTHODI HOUSE, PATHAYAKKALLU - KADAMPUZHA,
REPRESENTED BY POWER OF ATTORNEY HOLDER C.ABDUSSALAM,
S/O.ALAVIKUTTY, CHEMMUKKAN HOUSE, VENDALLOOR,
IRIMBILIYAM, PIN: 679 572.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.P.VENUGOPAL
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 22-09-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
sts
Crl.MC.No. 887 of 2015 ()
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE A1: TRUE COPY OF THE COMPLAINT IN ST. NO.125/2011, ON THE
FILES OF JUDICIAL FIRST CLASS MAGISTRATE I, TIRUR.
ANNEXURE A2: TRUE COPY OF THE CHIEF EXAMINATION AFFIDAVIT
SUBMITTED OF ATTORNEY AGENT OF THE COMPLAINANT IN
ST. NO.125/2011, ON THE FILES OF JUDICIAL FIRST CLASS
MAGISTRATE-I, TIRUR.
ANNEXURE A3: TRUE COPY OF THE APPLICATION, C.M.P NO.9893/2014 IN ST.
NO.125/2011, ON THE FILES OF JUDICIAL FIRST CLASS
MAGISTRATE-I, TIRUR.
ANNEXURE A4: TRUE COPY OF THE COUNTER STATEMENT SUBMITTED BY
ACCUSED IN C.M.P NO.9893/2014 IN ST. NO.125/2011, ON THE
FILES OF JUDICIAL FIRST CLASS MAGISTRATE-I, TIRUR.
ANNEXURE A5: CERTIFIED COPY OF THE ORDER DATED 28/01/2015 IN C.M.P
NO.9893/2014 IN ST. NO.125/2011, ON THE FILES OF JUDICIAL
FIRST CLASS MAGISTRATE-I, TIRUR.
RESPONDENT(S)' ANNEXURES: NIL
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/TRUE COPY/
P.A.TO JUDGE
sts
ALEXANDER THOMAS, J.
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Crl.M.C.No. 887 of 2015
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Dated this the 22nd day of September, 2017
ORDER
The order under challenge in this petition is the one issued by the trial court at Annexure-A5 dated 28.1.2015 rendered on Crl.M.P.No.9893 of 2014 in S.T.C.No.125 of 2011 whereby the trial court (Court of the Judicial First Class Magistrate-1, Tirur) has allowed the application submitted by the first respondent/complainant for amendment of the complaint. The first respondent is the complainant and the petitioner is the accused in the above said S.T.C.No.125 of 2011 wherein the offence alleged is the one punishable under Section 138 of the Negotiable Instruments Act. The alleged dishonoured cheque dated 3.1.2011 is for Rs.2,00,000/-.
2. Heard Sri.P.Jayaram, learned counsel appearing for 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 Crl.M.C.No. 887 of 2015 2 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 03.02.2011. The complainant has examined his power of attorney holder as PW1. In his evidence, PW1 has deposed that he has witnessed the transaction between the original complainant and the accused and that both in respect of the borrowal of the money as well as the handing over of the cheque in question etc. The Apex Court in the judgment dated 13.09.2013 in Narayanan v. State of Maharashtra reported in (2014)11 SCC 790 = 2013(4) KLT 21 (SC) has held that the power of attorney holder may be allowed to Crl.M.C.No. 887 of 2015 3 file, appear and depose for the purpose of issue of process for the offence punishable under Sec.138 of the NI Act and that the explicit assertion as to the knowledge of the power of attorney holder about the transaction in question must be clearly specified in the complaint and further that the power of attorney holder who does not have knowledge regarding the transaction cannot competently give evidence on behalf of the complainant in such a case. The complainant was advised by his counsel that in view of the legal position settled by the Apex Court in the above said decision in Narayanan's case (supra), it would be necessary to file an appropriate application for amendment of the complaint, in order to state the factual aspects which were omitted to be stated in the original complaint and that to bring on record the factual averments in the complaint through such amendment that the power of attorney holder had also actually witnessed the transactions in question. In the light of these aspects that the complainant has filed Annexure A3 Criminal Miscellaneous Petition No.9893 of 2014 in S.T.C.No. 125 of 2011 so as to introduce the following factual averments in the complaint through the said amendment.
" the power of attorney agent was present along with the complainant when the accused borrowed the amount and he had witnessed it and the power of attorney agent was present along with the complainant when the accused drawn and handed over the cheque No.457819, from her account in Canara Bank, Edappal branch in favour of the complainant and the power of attorney agent had also witnessed it."Crl.M.C.No. 887 of 2015 4
5. The 1st respondent (complainant) by filing Anexure A4 counter statement had objected to the said application for amendment. The trial court after hearing both sides has allowed the said plea for amendment as per impugned Annexure A5 order dated 28.1.2015 which 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 feel that the omission to state the fact regarding his personal knowledge of the transaction in the complaint must be a bonafide omission.
6. Hence, I feel that in the interest of justice, the prayer is to be allowed and the complainant must be allowed to amend the complaint
7. Hence, the petition is allowed and the petitioner/complainant is allowed to amend the complaint as proposed by him within 2 days from the date of order."
6. It is not in dispute that Annexure A3 application for amendment of the complaint was filed after the tendering of evidence of PW1. It is trite that there are no explicit provisions in the Code of Criminal Procedure, 1973 empowering the criminal court concerned to consider pleas for amendment of the complaints. Crl.M.C.No. 887 of 2015 5 However the Apex Court and various high courts have consistently held that though there are no explicit powers enabling the criminal court to entertain pleas for amendment, the criminal court will have the intrinsic power to consider appropriate pleas for correction or amendment in the averments of the complaint provided such averments relate to typographical or clerical errors. That where the application for amendment is a formal one it is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, then such a plea could be allowed not withstanding the absence of explicit enabling provisions in that regard in the Cr.P.C. The Apex Court has held in the judgment in U. P. Pollution Control Board v. Modi Distillery and others reported in 1987(3) SCC 684, para 6 that where some clerical or typographical errors have appeared in the complaint regarding the description of the complainant etc., then the plea for correction or amendment of the complaint in that regard could be entertained and allowed by the Criminal Court etc. It will be profitable to refer to para 6 of the above said decision in U.P. Pollution Control Board v. Messrs Modi Distillery and others (supra)P.P 659-660 para 6.
"6. On a combined reading of the provisions contained in sub- sections (1) and (2), we have no doubt whatever that the Chairman, Vice-Chairman, Managing Director and Members of the Board of Directors of Messrs Modi Industries Limited, could be prosecuted as having been in charge of and responsible to the company, for the business of the industrial unit Messrs Modi Distillery owned by it and could be deemed to be guilty of the offence with which they are Crl.M.C.No. 887 of 2015 6 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 Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 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 Messrs Modi Industries Limited, the company owning the industrial unit, in place of Messrs 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 Messrs Modi Industries Limited, the company owning the industrial unit, can be termed as correct, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum. We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board. Furthermore, the legal infirmity is of such a nature which could be easily cured. Another circumstance which brings out the narrow perspective of the learned Single Judge is his failure to appreciate the fact that the averment in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the Chairman, Vice-Chairman, Managing Director and members of the Board of Directors were also liable for the alleged offence committed by the Company."
7. By placing reliance on the above said judgment in U.P Pollution Control Board's case (supra), the Apex Court in the decision in S.R Sukumar vs. S.Sunaad Raghuram reported in (2015) 9 SCC 609 has held that an easily curable legal infirmity could be cured by Crl.M.C.No. 887 of 2015 7 means of a formal application for amendment and 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, not withstanding the fact that there is no enabling provisions in the Cr.P.C for entertaining such amendment, 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 Crl.M.C.No. 887 of 2015 8 change the original nature of the complaint etc. In the light of these aspects the Apex Court held that the High Court had rightly declined to interfere with the impugned order of the Magistrate allowing the amendment and held that the impugned order does not suffer from any serious improbability etc. It will be profitable to refer paras 19 and 20 of the judgment of the Apex Court in S.R.Sukumar's case reported in 2015(9) SCC 609, pp. 620-621.
"19. What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. 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 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 24-5-2007 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 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."
9. Thus the legal position that emerges is that where the Crl.M.C.No. 887 of 2015 9 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 held that the trial court committed a serious illegality in allowing the plea for amendment inasmuch such a cognizance of the offence was taken long ago and more importantly serious prejudice will be caused to the accused by allowing the plea for amendment. The contentions that are otherwise available to the accused on the basis of the dictum laid down by the Apex Court in Narayan vs. State of Maharashtra reported in 2014(11)SCC 790 = 2014(4) KLT 21 SC will be deprived to him and therefore it is only to be held that serious prejudice Crl.M.C.No. 887 of 2015 10 could be caused to the accused by allowing such plea for amendment. Therefore the impugned order is liable to be interfered with.
11. Accordingly, it is ordered in the interest of justice that the impugned Annexure A5 order will stand set aside. It is also ordered that Annexure A3 Criminal Miscellaneous Petition No.9893 of 2014 filed by the complainant will also stand dismissed. In case the trial court has already carried out the amendment in pursuance of the impugned Annexure A5 order then such amendment in that regard will stand struck out.
12. Sri.P.Venugopal, learned counsel appearing for the 1st respondent (complainant) submitted that as it is clearly disclosed in the complaint that the entire transactions were directly between the complainant and the accused, and that it is proposed to file an appropriate application for examining the original complainant as PW2, so that he can depose the actual state of affairs. Sri.P.Jayaram, learned counsel appearing for the petitioner (accused) would submit that this Court cannot consider such a plea of the 1st respondent in the present petition as it is filed by the accused. Per contra Sri. Sri.P.Venugopal, learned counsel appearing for the 1st respondent (complainant) would submit that the plea made by the petitioner is perfectly in consonance with the dictum laid down by the Apex Court in Vinita S.Rao vs. Essen Crl.M.C.No. 887 of 2015 11 Corporate Services Private Limited and another reported in (2015)1 SCC 527= 2014 KHC 4601. In respect of the regular pleas in this regard, this Court need only note that the above said plea made by the 1st respondent need not be adjudged now by this Court and it is for the complainant to move appropiate application in that regard before the trial court and it is for that trial court to deal with the same and render necessary decisions thereon after hearing both sides. All contentions in that regard are left open to be decided at the appropriate stage and in the appropriate proceedings.
With these observations and directions the Crl.M.C stands finally disposed of.
Sd/-
ALEXANDER THOMAS JUDGE IAP