Andhra Pradesh High Court - Amravati
M/S. Bijay Auto Services, vs The State Of Andhra Pradesh, on 1 November, 2023
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CRIMINAL PETITION No.6894 OF 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), praying to quash the order dated 12th July, 2019 in C.C.No.153 of 2016 on the file of the Special Magistrate Court-VI, Visakhapatnam District, and, consequently, to allow the amendment application as prayed for in Crl.M.P.No.2498 of 2019 in C.C.No.153 of 2016 on the file of the Special Magistrate Court-VI, Visakhapatnam District.
2. The petitioner herein is the complainant, and respondents 2 to 5 are the accused Nos.1 to 4 in the aforesaid C.C. No. 153 of 2016. The parties are hereinafter referred to as the „complainant‟ and the „accused‟. The complainant has filed a complaint under Section 190 Cr.P.C. read with Section 200 Cr.P.C., vide C.C.No.153 of 2016, on the file of the Special Magistrate Court- VI, Visakhapatnam, to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called „the NI Act‟, for short) against the accused, who are respondents 2 to 5 herein, and to punish the accused. 2
3. While the matter stood thus the complainant has filed Crl.M.P.No.2498 of 2019 under Section 143 of the NI Act to amend the complaint in the said calendar case. Initially, it is asserted in the complaint that the notices were sent to the accused, and the accused has not claimed the said notices, hence it is deemed service of notices.
Now the complainant wanted to amend the complaint, asserting that he has sent notices to the accused, and the notices were served on the first accused, and the postal acknowledgment dated 21-05-2014 was not filed due to oversight, as it was misplaced in the office of the advocate and as it is mixed with notices of other cases.
4. It is also asserted in the petition filed for amendment of the complaint that earlier the complainant filed Crl.M.P.No.233 of 2018 under Section 311 of Cr.P.C. to receive the said postal acknowledgment dated 21-05-2014, which was received by the 1st accused, so as to enable the complainant to mark the same as a document; otherwise, it is fatal to the case of the complainant herein. The said petition was dismissed by the learned Magistrate.
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5. The accused have denied all the averments made in the petition filed in support of the amendment petition and would contend that the complainant filed an evidence affidavit on 28th October, 2016 and subsequently filed an additional chief affidavit on 22-12-2016; he was cross-examined, and the complainant has not brought the same to the notice of the Court below. In order to cover the latches, the complainant has filed the present petition, wantonly to drag on the proceedings. They also contend that earlier the complainant filed a petition in Crl.M.P.No.233 of 2018 to receive the postal acknowledgment served on the accused, and the same was dismissed, and it has attained finality. Hence, it is prayed in the counter to dismiss the petition filed by the complainant for amendment of the complaint.
6. After considering the petition and the counter averments, the learned Magistrate has dismissed the Crl.M.P.No.2498 of 2019 by an order dated 12-07-2019, holding that the amendment is not a curable defect and it likely causes prejudice to the accused. Inter alia, the Court observed that the complainant was examined long ago on 17-11-2017 and P.W.2 was also examined, and the defence counsel cross-examined on 4 the return of notices. The amendment petition can be allowed by the Court, if no prejudice is caused to the other side, relying on the judgment of the Apex Court in S.R.Sukumar v. S.Sunaad Raghuram1.
7. Now the said order is assailed or agitated in the present criminal petition on the ground that the amendment of the complaint does not cause any prejudice to the accused, it is a curable defect, and the learned magistrate has wrongly relied on or interpreted the judgment in S.R. Sukumar's case (1 supra). As the service of notice is a question of fact and a rebuttable presumption, no prejudice will be caused to the accused by merely allowing the amendment, as it can be rebutted by the accused. However, the drawer is at liberty to rebut this presumption either by adducing evidence or on the basis of evidence produced by the complainant. Hence, it is prayed to allow the said Crl.M.P. by setting aside the order dated 12-07-2019, in Crl.M.P.No.2498 of 2019.
8. Repelling the arguments and contents raised by the complainant, the learned counsel for the accused would support the order of the learned magistrate and would contend that the 1 (2015) 9 SCC 609 5 order of the learned magistrate is in accordance with the law and no interference is required, and, inter alia, he would contend that Crl.M.P.No.233 of 2018 was filed by the complainant to receive the said postal acknowledgment dated 21-05-2014, and the said petition was dismissed, it was not assailed, and, as such, it has attained finality, and if the same amendment is allowed after the cross-examination of P.Ws.1 and 2, it causes prejudice to the accused. Hence, it is prayed to dismiss the present criminal petition, as the impugned order lacks merit.
9. Now the point for consideration is whether the amendment sought in the complaint is permissible in criminal cases and whether the defect is a curable defect or not.
10. Either in the NI Act or in the Code of Criminal Procedure, it does not envisage the amendment of the complaint. In the absence of such a procedure, the Court cannot exercise such jurisdiction. The Court can exercise such jurisdiction only to amend the complaint where such a mistake is a typographical or clerical one that does not cause prejudice to the other side.
11. Now the complainant is seeking amendment of the complaint with the following assertion: "the notices were sent to the accused and the first accused received the notice, and the 6 acknowledgment dated 21-05-2014 was misplaced in the office of the counsel" in place of the averment made in the complaint "that notices were sent to the accused and they were not claimed, and hence it is deemed service". There is a significant difference between notice unclaimed and notice served on the first accused.
12. As rightly contested by the accused, there is no provision for amendment in the Criminal Procedure Code. The Supreme Court in S.R.Sukumar's case (1 supra) has categorically held that there is no specific provision in the Criminal Procedure Code either to amend the complaint or if the amendment relates to 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 Criminal Procedure Code for entertaining such amendment, the Court may permit such an amendment to be made and 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. 7
13. Section 138 of the NI Act is a penal provision where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any different or other liability is dishonoured or returned by the bank unpaid due to insufficient funds. The section is subject to the following provisions:
"Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder, in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such a cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."8
14. Under clause (b) of Section 138 of the NI Act, the payee or the holder, in due course of the cheque, as the case may be, shall make a demand for payment of the said amount by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The section indicates that the notice has to be issued within thirty days to the drawer of the cheque, and it is a mandatory provision. The purpose of the notice is to give the drawer of the cheque the opportunity to make a payment.
15. As can be seen from Section 27 of the General Clauses Act, 1897, and Section 114 of the Evidence Act, 1872, once a notice is sent by registered post to the addressee or to the drawer of the cheque, the service of notice is deemed to have been completed within the requirements under Section 138(b) of the NI Act. In this context, it may refer to an earlier judgment of the Apex Court in M/s. Dalmia Cement (Bharat) Ltd. v. M/s. Galaxy Traders and Agencies Ltd.2, in which it was held that the presumption is rebuttable.
2 AIR 2001 SC 676 9
16. But, in the subsequent decision in M/s. Harman Electronics (P) Ltd. and another v. M/s. National Panasonic India Ltd.3, it was held that the presumption in support of service of notice depends upon the facts and circumstances of each case.
17. In Jagdish Singh v. Natthu Singh4, State of M.P. v. Hiralal5, V.Rajkumar v. P. Subrama Naidu and another6, the Apex Court held that when a notice is sent by registered post and is returned with the postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.
18. In Shakti Tavel and Tours v. State of Bihar and another 7, the Apex Court held that the complaint is not maintainable if it is not asserted in the complaint about the service of notice.
19. As seen from the record, it appears that acknowledgment was received on 21-05-2014; the complaint was registered in the year 2016; and the amendment petition was filed in the year 2019 after a gap of three years. There is no assertion in the petition filed seeking amendment when the acknowledgment was traced in the office of the counsel, in a strict sense; Order 6 Rule 3 AIR 2009 SC 1168 4 (1992) 1 SCC 647 5 (1996) 7 SCC 523 6 (2004) 8 SCC 774 7 (2002) 9 SCC 415 10 17 C.P.C. does not apply to criminal cases; if it is tested with the proviso of Order 6 Rule 17 C.P.C., no amendment can be sought by the complainant after commencement of trial.
20. The complainant herein filed Crl.M.P.No.233 of 2018 under Section 311 Cr.P.C. to receive the postal acknowledgement as an additional document, and the same was dismissed by the learned magistrate. The said dismissal order was not assailed and has attained finality, and now the complainant cannot agitate for an amendment of the complaint. Now the present petition is filed for an amendment to the complaint, albeit the provision is different, the purpose is the same, if the petition is allowed for an amendment of the complaint, it causes prejudice to the accused herein, it is not a curable defect, and it is not a simple infirmity as it is not a typographical or clerical mistake to allow the amendment. If the amendment petition is allowed, it changes the nature of the pleading of the complaint and, undoubtedly, causes prejudice to the accused.
21. Resultantly, the criminal petition fails, and the impugned order of the learned Magistrate is sustainable in dismissing the application filed for amendment, and this Court does not find any infirmity or illegality in the impugned order, as the said 11 amendment petition is filed after three years of the filing of the complaint at the verge of the trial.
22. Accordingly, the criminal petition is dismissed. As a sequel, interlocutory applications, pending if any in this case, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 01.11.2023 siva 12 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO CRIMINAL PETITION No.6894 OF 2019 Date: 01.11.2023 siva