## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN**
**TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934**
**Crl.MC.No. 490 of 2007 ( ) -------------------------ST.789/2004 of J.M.F.C.-IV,KOZHIKODE**
## **PETITIONER(S)/COMPLAINANT:**
**-------------------------**
**FOCUS ADVERTISING COMPANY, REPRESENTED BY ITS PARTNER P.SABU, MARKAZ COMPLEX MAVOOR ROAD, KOZHIKODE-4.**
**BY ADVS.SRI.BOBY MATHEW SRI.E.T.MATHEW**
## **COMPLAINANT(S)/STATE AND ACCUSED:**
**---------------------------------**
**1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.**
**2. K.BAIJU, PROPRIETOR, AMBALAKKARA FILMS, AMBALAKKARA HOUSE, KOTTARAKARA KOLLAM DISTRICT.**
**BY ADV. SRI.M.K.CHANDRA MOHANDAS BY PUBLIC PROSECUTOR SMT. JASMINE V.H.**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **CRL.M.C.NO.490/2007**
## **-2-**
## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
- **ANNEXURE A1: COPY OF THE PARTNERSHIP DEED DT.07.09.2002 OF THE PEITIONER/COMPLAINANT FIRM.**
- **ANNEXURE A2: COPY OF THE CHEQUE DT.22.11.2003 FOR RS.94,800/- ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.**
- **ANNEXURE A3: COPY OF THE NOTICE OF DISHONOR DT.03.06.2004 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT UNDER REGISTERED POST WITH ACKNOWLEDGMENT DUE.**
- **ANNEXURE A4: COPY OF THE COMPLAINT DT.15.07.2004 FILED BY THE PETITIONER AGAINST THE 2ND RESPONDENT NOW PENDING AS ST. NO.789/2004 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS IV, KOZHIKODE.**
- **ANNEXURE A5: COPY OF THE CMP NO.5475/06 DT.21.11.2006 IN ST. NO.789/2004 FILED BY THE PETITIONER BEFORE THE JFCM-IV KOZHIKODE.**
**ANNEXURE A6: COPY OF THE CMP NO.5476/06 DT.21.11.2006 IN ST. NO.789/2004 FILED BNY THE PETITIONER BEFORE THE JFCM-IV, KOZHIKODE.**
- **ANNEXURE A7: COPY OF THE CMP NO:5477/06 DT.21.11.2006 IN ST.NO.789/2004 FILED BY THE PETITIONER BEFORE THE JFCM-IV, KOZHIKODE.**
- **ANNEXURE A8: COPY OF THE OBJECTION DT.11.12.2006 FILED BY THE 2ND RESPONDENT IN CMP NO.5475/06 IN ST. NO.789/2004 PENDING ON THE FILE OF JFCM-IV, KOZHIKODE.**
- **ANNEXURE A9: COPY OF THE OBJECTION DT.11.12.2006 FILED BY THE 2ND RESPONDENT IN CMP NO.5476/2006 IN ST.NO.789/2004 PEINDING ON THE FILE OF JFCM-IV, KOZHIKODE.**
**CRL.M.C.NO.490/2007**
**-3-**
**ANNEXURE A10: COPY OF THE OBJECTION DT.11.12.2006 FILED BY THE 2ND RESPONDENT IN CMP NO.5477/06 IN ST.NO.789/2004 PENDING ON THE FILE OF JFCMIV, KOZHIKODE. ANNEXURE A11: COPY OF THE COMMON ORDER DT.17.01.2007 PASSED BY THE JFCM-IV, KOZHIKODE IN CMP NOS:5475/06 5476/06 AND 5477/06 IN ST.NO.789/04 AS COPIED DOWN BY ADVOCATE ANIL VISWANATH, KOZHIKODE.**
**RESPONDENT'S EXHIBITS: NIL**
**// True copy // PA to Judge**
das
## **N.K.BALAKRISHNAN, J. ==================**
## **Crl.M.C. No. 490 of 2007**
## **========================= Dated this the 18[th] day of September, 2012**
## **ORDER**
The petitioner is the complainant in a case filed under Sec.138 of N.I Act. Cognizance was taken and process was issued to the respondent. Evidence was adduced on the side of the prosecution. When the case was posted for questioning the accused under Sec.313 of Cr.P.C, the complainant wanted to produce the copy of the partnership deed and for that purpose the evidence was to be reopened. Therefore three applications were filed by the complainant before the court below. Those applications were opposed by the accused contending that the case set up by the complainant was that the complainant is a proprietorship concern and that now the complainant wanted to amend the cause title of the complainant in such a way that the complainant is
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described as a partnership firm. Considering the objection raised by the accused, the learned Magistrate dismissed those applications. Annexure A11 is the order passed by the learned Magistrate which is challenged in this petition.
2. Annexure A2 is the copy of the cheque issued by the accused in favour of the complainant who was described as Focus Advertising Company. The cheque was for Rs.94,800/- (Rupees ninety four thousand eight hundred only). There was no dispute regarding the execution of the cheque in favour of the payee shown in Annexure A2, the learned counsel submits. It is further submitted by the learned counsel that evidence was given regarding the factum of execution of Annexure A2, cheque by the accused. The evidence regarding compliance of all the requirements to sustain the prosecution under Sec.138 of N.I. Act was also produced by the complainant, it is argued. It was only later that the
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learned counsel for the complainant, who was conducting the case before the trial court, could notice that “Focus Advertising Company” was not a proprietorship concern but was actually a partnership firm. The complainant and his father are the only two partners. Copy of the partnership deed has been produced before court.
3. In paragraph 6 of the order, the learned Magistrate has stated that the complaint was filed by one P.M.Kutty, the proprietor of the firm. That is seen to be a factual mistake. P.M.Kutty is the father of the complainant. Complaint was filed by Mr.P.Sabu. If there is evidence to prove the execution of the cheque and if other ingredients are satisfied, it is not known how the accused will be prejudiced by causing amendment to the cause title of the complainant, describing the complainant as a partnership firm. It is not a case where the particular defence which is available to the accused is being taken away by causing amendment to the cause title, learned
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counsel for the petitioner submits.
4. The learned counsel for the respondent/accused vehemently opposed the petition stating that there is no illegality or incorrectness in the impugned order Annexure A11, passed by the learned Magistrate. Learned counsel has pointed out the elusive and imprecise statement in the different petitions filed by the advocate on behalf of the complainant. The petition to cause amendment to the cause title of the complainant is seen filed by the counsel himself. The complainant is the author of the complaint. He alone can cause amendment to his complaint. It is seen that, as per the common order passed by the learned Magistrate evidenced by Annexure A11, three applications were disposed of. One application was to reopen the evidence. The other application was to receive the partnership deed in evidence and another one is to recall and examine PW1. No application was filed by the complainant himself to reopen the evidence or to
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produce the document. There is force in the statement made by the learned counsel for the accused that as the applications were filed by the advocate and not by the party, the impugned order does not require any interference. Though the counsel appearing for the parties may be able to file other petitions, which are not touching upon the pleadings or evidence, the counsel on his own cannot file a petition to amend the complaint. It is true, in this petition it is only the cause title of the complaint, that is sought to be amended or corrected. Even if it be so, it can be done only by the complainant himself and not by the counsel. The complainant is the author of the complaint. It is his 'property'. It can be sought to be amended only by the complainant.
5. It is also pointed out by the learned counsel for the accused that in the statutory notice sent on behalf of the complainant, in the complaint and even in the affidavit filed in lieu of chief-examination, it was stated
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that the complainant is the proprietorship concern and not a partnership firm. Evidently, it was not properly adverted to by the complainant or his counsel earlier.
6. The learned counsel for the complainant/ petitioner submits that no prejudice whatsoever would be caused to the accused since the cheque was issued in the name of Focus Advertising Company. It is Focus Advertising Company, the complainant who filed the complaint, though it was mis-described itself as a proprietorship concern instead of 'partnership firm'. That does not in any way affect the case of the accused nor can any prejudice be put forward by the accused.
7. The learned counsel for the accused has relied upon decision of this court in **Anilmon Thomas v. Central Bureau of Investigation** (2011 (4) KLT 776) in support of his submission that a witness who was already examined, cross-examined and re-examined cannot be simply recalled unless there are special reasons to allow
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the same. The facts dealt with in the aforesaid decision are different. That was a case where one of the prosecution witnesses was sought to be recalled by the accused for the sole purpose of giving a version contradictory to the statement already given by that witness. Since there was material to hold that even the affidavit filed by that witness was to the effect that she wanted to tell the court that the earlier evidence given by her was not correct, relying on the decisions of the Supreme Court and of the Division Bench in **Johnson v. State of Kerala** (1996(2) KLT 1027), this court disallowed the request to recall the witness for further examination. That is not the situation here. True that PW1 was examined, cross-examined and re-examined, but the request here is to recall that witness only to give evidence relating the partnership deed produced by him to show that the complainant is a partnership firm and not a proprietorship concern. That cannot in any way
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prejudice the accused, the learned counsel for the petitioner/complainant submits. In the affidavit filed by PW1, he was described himself as the proprietor also remains on record. Whether the complainant can get it amended or whether he can file an additional affidavit explaining the reason for stating so, is a matter to be considered by the trial court. In this petition, main ground urged by the petitioner is that the request to cause amendment to the petition was unjustly rejected by the court below. But as pointed out above, PW1 (complainant) who described himself as the proprietor alone can file a petition to cause amendment to the cause title to describe himself as a partner or managing partner as the case may be and state that the Focus Advertising Company is a firm. As pointed out by the learned counsel for the accused, the petitions are seen filed by the counsel for the complainant in a casual manner.
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8. Since the petition seeking amendment of the cause title of the complaint was not filed by the complainant himself, the request to allow that petition cannot be sustained. Hence, this petition stands dismissed. But the petitioner can file a proper petition before the learned Magistrate, in which case after giving opportunity to the accused and after hearing him, the petition shall be disposed of by the learned Magistrate in accordance with law. Whether, in order to have a proper disposal of the case, the partnership deed is to be received in evidence and whether the case has to be reopened can also be considered by the learned Magistrate if proper petitions are filed by the complainant.
This Criminal M.C is disposed of as stated above.
## Sd/-
## **N.K.BALAKRISHNAN, JUDGE**
das
// True copy //
PA to Judge
