High Court of KeralaSingle Judge2020-01-22Petition allowed; Annexure-A6 order set aside; ...

KUTTAN v. VARANAMALYAM KURIES (P) LTD. and STATE OF KERALA

Case / Petition Number:Crl.M.C.No.8798 of 2019 (H)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2020-01-22
Court Decision / Holding: Annexure-A6 order passed by the learned Magistrate, allowing Annexure-A4 application for amendment of the complaint, is set aside. The petition is allowed. Annexure-A6 order is set aside. The learned Magistrate shall proceed with the trial of the case as if no amendment has been made to the complaint. The complainant is at liberty to adduce evidence to show that the averments in the complaint regarding the original transaction are incorrect or wrong.
Final Disposition: Petition allowed; Annexure-A6 order set aside; trial to proceed as if no amendment.

Parties to the Case

Appellants / Petitioners

KUTTAN AGED 70 YEARS S/O. VELUNNY, ITTYADATHPARAMBIL HOUSE, CHERPU, THRISSUR-680561.

Respondents

VARANAMALYAM KURIES (P) LTD. REP.BY MANAGER RADHAKRISHNAN, AGED 70 YEARS, S/O. SANKARAN, EDASSERYVALAPPIL, MADAKKATHRA, THRISSUR-680651.
STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

Legal Representation & Advocates

Counsels for Petitioners

• SRI.BIJO FRANCIS
• SRI.JOSE KURIAKOSE (VILANGATTIL)
• SRI.JACOB GEORGE (PATHAZHAKKUZHIKAL)

Counsels for Respondents

• SRI.SHEJI P.ABRAHAM
• SRI SUMODU P N - PUBLIC PROSECUTOR
• PUBLIC PROSECUTOR

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous petition under Section 482 Cr.P.C., heard by a single judge (Hon. Justice R. Narayana Pisharadi) on 22 January 2020. The petitioner, Kuttan, challenges an order of the Judicial First Class Magistrate-I, Thrissur, dated 16 November 2019, allowing amendment of a complaint registered under Section 138 of the Negotiable Instruments Act (NI Act) in CC 4199/2014. The underlying case concerns a disputed kuri (monthly cooperative loan) transaction initiated around 2006-2007, where the complainant, Varanamalyam Kuries (P) Ltd., claims Rs. 50,320 was due and that the accused issued a cheque dated 20 November 2010, which bounced for want of funds. The complainant sought amendment to correct dates of the kuri’s commencement, joining date, and bid date. The trial court permitted the amendment, prompting the petition. The High Court analyzes the absence of an express provision for amendment, invoking the inherent power under Section 482 Cr.P.C. and several precedents (Madhavi v. Thupran, Aliyar v. Pathu, Sukumar v. Sunaad Reghuram, Linda John Abraham, Hafsa Rahman) to distinguish formal corrections from substantial alterations that prejudice the accused. It holds that the proposed amendment is not merely clerical, would alter material facts, and would prejudice the defence; accordingly, the amendment is set aside and the trial proceeds as if no amendment had been allowed, with the complainant free to prove the original transaction through evidence.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 482 Cr.P.C.

Legal Doctrines & Maxims

Inherent powers of courts are in addition to and complementary to the powers conferred by law and can be exercised to advance ends of justice, unless prohibited by express provisions
Inherent powers cannot override express provisions of law
Ends of justice, equity, and good conscience guide the exercise of discretion
Correction of clerical or typographical errors in a complaint is permissible if it does not alter the substance and does not prejudice the accused
A drastic change in the facts or cause of action through amendment requires denial to prevent prejudice to the accused

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that the proposed amendment is not a mere clerical correction but a substantial alteration of the facts and dates of the original transaction. The amendment seeks to change the kuris' starting date, the date on which the accused joined, and the date of the bid, thereby modifying the key facts that constitute the ingredients of an offence under Section 138 NI Act. Since there is no express provision empowering amendments to a complaint in such a case, allowing the amendment at a late stage would prejudice the accused by requiring new lines of defence and reopening evidence on facts that have already been settled. The petitioner relies on the principle that inherent powers under Section 482 Cr.P.C. exist to prevent miscarriage of justice, but such powers must not contravene express provisions and should be exercised with caution, only for formal corrections where no prejudice arises. The decisions in Sukumar v. Sunaad Reghuram and Hafsa Rahman v. State of Kerala, as well as Madhavi v. Thupran and Aliyar v. Pathu, are cited to support the need to distinguish between curable clerical errors and changes that alter the cause of action. In this case, the amendment would substantially alter the transaction and prejudice the defence, and thus should be rejected.

Contentions of Respondents

Respondents submit that the amendment is a routine correction to reflect the actual transaction and is not intended to alter the underlying cause of action. The proposed changes concern clerical errors related to the kuri's dates and the particulars of the original transaction. The trial court's order granting the amendment is justified since there is no explicit prohibition against amendment, and the Court should ensure accuracy and avoid miscarriage of justice. The complainant's notice and the original transaction remain intact; the amendment would not introduce a new case, only clarify the facts. The case law cited by the petitioner is distinguishable since those decisions emphasize caution to prevent prejudice and, in some instances, permit amendments when only clerical corrections are involved. In short, the amendment is necessary to reflect the true facts and does not prejudice the accused; The Magistrate's order should be sustained.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Madhavi v. Thupran	1987 (1) KLT 488	Positive	Cited to support the proposition that inherent powers exist to facilitate justice but cannot violate express provisions; used to frame limits on exercise of inherent power.
Aliyar v. Pathu	1988 (2) KLT 446	Positive	Cited with Madhavi v. Thupran to emphasize judicious use of inherent powers and restriction by law.
Sukumar v. Sunaad Reghuram	AIR 2015 SC 2757	Positive	Supreme Court guidance on whether amendments are formal or substantial; supports allowing formal amendments while preventing prejudicial changes.
Linda John Abraham v. Business India Group Company	2011(4) KHC 587; 2011 (4) KLT 787	Positive	Cited to illustrate caution against allowing amendments that go to the core of the matter and cause prejudice; used to maintain protections for the accused.
Hafsa Rahman v. State of Kerala	2017 (3) KHC 49	Positive	Cited to support that formal amendments for curing clerical errors may be allowed if no prejudice occurs.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **Crl.MC.No.8798 OF 2019(H)** **AGAINST THE ORDER IN C.M.P.6431/2019 IN CC 4199/2014 DATED 24-11-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR** ## **PETITIONER/ACCUSED:** **KUTTAN AGED 70 YEARS S/O. VELUNNY, ITTYADATHPARAMBIL HOUSE, CHERPU, THRISSUR-680561.** **BY ADVS. SRI.BIJO FRANCIS SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.JACOB GEORGE (PATHAZHAKKUZHIKAL)** ## **RESPONDENTS/COMPLAINANTS:** - **1 VARANAMALYAM KURIES (P) LTD. REP.BY MANAGER RADHAKRISHNAN, AGED 70 YEARS, S/O. SANKARAN, EDASSERYVALAPPIL, MADAKKATHRA, THRISSUR-680651.** - **2 STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. SRI.SHEJI P.ABRAHAM SRI SUMODU P N – PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.01.2020, THE COURT ON 22.01.2020 PASSED THE FOLLOWING:** Crl.M.C.No.8798/2019 2 ## **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.8798 of 2019 ----------------------------------------------Dated this the 22[nd] day of January, 2020 ## **O R D E R** The petitioner is the accused in the case C.C.No.4199/2014 on the file of the Court of the Judicial First Class Magistrate-I, Thrissur. 2. The aforesaid case is instituted upon the complaint (Annexure-A1) filed by the first respondent company (hereinafter referred to as 'the complainant') against the petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. The material averments in Annexure-A1 complaint are as follows: The accused had joined the 9[th] day monthly kuri started by the complainant company on 09.02.2007 as per statement No.10. He had bid the kuri on 09.02.2007. The kuri Crl.M.C.No.8798/2019 3 amount was paid to him by the complainant. An amount of Rs.50,320/- was due to the complainant from the accused in the kuri transaction. Towards that amount, the accused signed and gave a cheque dated 20.11.2010 in favour of the complainant. The complainant presented the cheque in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount of the cheque. 4. The complainant filed Annexure-A4 application for amendment of the complaint. The amendment, which was prayed for by the complainant, was as follows: The date of commencement of the kuri has to be corrected as 05.10.2006 instead of 09.02.2007. The monthly day of the kuri has to be corrected as 5[th] day instead of 9[th] day. The averment that the accused joined the “9[th] day monthly kuri as per statement No.10” has to be substituted as “5[th] day monthly kuri as per statement No.31”. The date on which the accused bid the kuri has to be Crl.M.C.No.8798/2019 4 corrected and substituted as 05.12.2006 instead of 09.02.2007. 5. The petitioner filed Annexure-A5 objection to Annexure-A4 application, contending that if the amendment was allowed it would cause serious prejudice to him. 6. As per Annexure-A6 order, the trial court allowed the application for amendment of the complaint. The aforesaid order is challenged in this petition filed under Section 482 Cr.P.C. 7. Heard learned counsel for the petitioner and also the first respondent. 8. Learned counsel for the petitioner contended that the amendment of the complaint allowed by the trial court as per Annexure-A6 order is of a substantial character and not a formal one. Learned counsel would contend that the amendment of the complaint would cause serious prejudice to the petitioner/accused in the defence to be adopted in the case. 9. Learned counsel for the respondent submitted that the amendment was sought only to correct the typographical error and clerical mistake committed while drafting the complaint and the trial court was perfectly justified in allowing the amendment Crl.M.C.No.8798/2019 5 of the complaint. 10. There is no specific provision dealing with amendment of complaint in a criminal case. There is also no provision in the Code of Criminal Procedure or in the Act prohibiting amendment of complaint. It is well settled that, even though inherent power saved under Section 482 Cr.P.C is only in favour of High Courts, the subordinate criminal courts are not powerless to do what is absolutely necessary for dispensation of justice in the absence of a specific enabling provision provided there is no prohibition and no illegality or miscarriage of justice is involved. In such circumstances, in order to do what is absolutely necessary in the ends of justice or to prevent prejudice or miscarriage of justice, what is not prohibited could be taken as permitted. 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 cause prejudice to a party. Inherent powers of courts are in addition to and complementary to the powers specifically conferred on them. But, inherent powers cannot be exercised against express Crl.M.C.No.8798/2019 6 provisions of law. If there are specific provisions in the Code of Criminal Procedure dealing with particular topic and when they expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to a matter, inherent powers cannot be invoked. Inherent power has to be exercised judiciously and not arbitrarily or capriciously ( **Madhavi v. Thupran : 1987 (1) KLT 488** and **Aliyar v. Pathu : 1988 (2) KLT 446** ). 11. In **Sukumar v. Sunaad Reghuram : AIR 2015 SC 2757** , the Supreme Court has held as follows: _“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_ Crl.M.C.No.8798/2019 7 _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”._ ## 12. **Linda John Abraham v. Business India Group** **Company : 2011(4) KHC 587 : 2011 (4) KLT 787** was a case in which the complainant filed a petition for amendment to introduce a plea to the effect that the directors of the company were/are persons in charge of and responsible for the conduct of the business of the company. Learned Magistrate dismissed the application for amendment. This Court upheld the order of the learned Magistrate stating that the proposed amendment cannot be allowed to be treated as a correction to cure a clerical mistake and the amendment would go to the core of the matter and if the amendment was allowed, it would cause serious prejudice to the accused. ## 13. In **Hafsa Rahman v. State of Kerala : 2017 (3) KHC** **49** , the amendment of the complaint proposed was for correcting the name of the person who had signed the cheque. All that the complainant sought in that case was for correcting the words Crl.M.C.No.8798/2019 8 "2nd accused" appearing in paragraph 6 of the complaint as "4th accused". This Court permitted amendment of the complaint. This Court held that a formal amendment for curing an infirmity, especially of the nature of clerical or typographical error, which would not change the nature of the complaint, could be allowed, so long as it does not cause any serious prejudice to the accused. 14. The principles that can be culled out from the aforesaid decisions can be stated as follows. Though there is no express provision in the Code of Criminal Procedure or the Act empowering a Magistrate to permit amendment of a complaint filed for an offence under Section 138 of the Act, in the absence of any prohibition with regard to exercise of such power, the Magistrate can exercise such power in appropriate cases to cause the advancement of justice. If the amendment of the complaint proposed is only formal and not substantial, it can be allowed. But, if the amendment of the complaint would cause serious prejudice to the accused, it shall not be allowed. Correction of a typographical error or clerical mistake in the complaint can normally be permitted. If the amendment would change the Crl.M.C.No.8798/2019 9 nature and character of the complaint, the court shall not allow it as it would cause grave prejudice to the accused. 15. In the instant case, by the proposed amendment, the complainant wants to change the averments in the complaint with respect to the following matters: (1) the number of the kuri which the accused had subscribed (2) the date on which the accused joined the kuri and (3) the date on which the accused bid the kuri. 16. In my view, the proposed amendment of the complaint is not formal in nature. It cannot also be found that the amendment sought is for correcting any clerical mistake or typographical error. 17. It is true that the amendment sought, if allowed, will not change the nature and the character of the complaint or the cause of action for filing the complaint. The original transaction is not the cause of action for filing a complaint for an offence under Section 138 of the Act. The dishonour of the cheque for want of sufficient funds in the account of the drawer of the cheque and non-payment of the amount of the cheque by the Crl.M.C.No.8798/2019 10 drawer within the period stipulated on receipt of statutory notice from the payee constitute the cause of action for a complaint for an offence under Section 138 of the Act. Even if there is no averment at all in the complaint with regard to the original transaction, it will not affect the maintainability of the complaint, if it contains averments which constitute the ingredients of an offence under Section 138 of the Act. But, on this ground, the prayer for amendment of the complaint cannot be allowed. In a case where the details of the original transaction are mentioned in the complaint, if drastic change is made by way of amendment to such details at a stage when evidence in the case is about to commence, it would cause serious prejudice to the accused. 18. The fact that the statutory notice sent by the complainant to the accused contains the correct details of the original transaction is not a sufficient ground to allow the prayer for amendment of the complaint. 19. It is relevant here to note that the complaint was filed in February, 2011 but the application for amendment was filed only on 11.10.2019. Crl.M.C.No.8798/2019 11 20. The court below has gone wrong in finding that the amendment sought by the complainant is only to correct typographical error and clerical mistake in the complaint. It is really a mistake in making correct statement of facts. If mistake has occurred in the complaint in stating relevant facts, the only way of correcting it is in the course of evidence. The complainant cannot be allowed to remove or erase or change his original version of the transaction in the complaint, though he would be free to state in evidence that he has made a wrong or incorrect statement in the complaint. 21. In the aforesaid circumstances, I find that Annexure-A6 order passed by the learned Magistrate is not sustainable in law. It is liable to be set aside. 22. Consequently, the petition is allowed. Annexure-A6 order passed by the learned Magistrate, allowing Annexure-A4 application for amendment of the complaint, is set aside. The learned Magistrate shall proceed with the trial of the case as if no amendment has been made to the complaint. The complainant is at liberty to adduce evidence to show that the averments in the 12 Crl.M.C.No.8798/2019 complaint regarding the original transaction are incorrect or wrong. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.8798/2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONER DATED 10.02.2011.** **ANNEXURE A2 CERTIFIED TRUE COPY OF THE AFFIDAVIT DATED 10.02.2011. ANNEXURE A3 TRUE COPY OF NOTICE DATED 10.12.2010. ANNEXURE A4 TRUE COPY OF C.M.P. 6431/2019 DATED 11.10.2019. ANNEXURE A5 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER AGAINST ANNEXURES A4 DATED 15.10.2019.** **ANNEXURE A6 CERTIFIED COPY OF THE ORDER OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1 THRISSUR DATED 16.11.2019 IN C.M.P. 6431/2019 FILED IN C.C. 4199/2014.** ## **RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE