M/S GEORGE FUELS v. THE STATE OF KERALA & M/S AMPTECH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** # **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** ## **Crl.MC.No. 5799 of 2014 ()** ## **--------------------------C.C.NO.68/2014 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT , ERNAKULAM.** **----------------** ## **PETITIONER(S)/COUNTER PETITIONERS- ACCUSED:** **----------------------------------------------------------------------------** ## **1. M/S GEORGE FUELS,** **INDIAN OIL DEALER, AP IX/185-B, N.H.47, AROOR, ALAPPUZHA DISTRICT - 688 534, REPRESENTED BY ITS MANAGING PARTNER - P.A.GEORGE THARAKAN.** **2. P.A.GEORGE THARAKAN,** - **S/O.ABRAHAM P.GEORGE,AGED 40 YEARS, MANAGING PARTNER, M/S.GEORGE FUELS, INDIAN OIL DEALER, AP IX/185-B, N.H. 47, AROOR, ALAPPUZHA DISTRICT, RESIDING AT KALATHARA PARAYIL, 1/738A, PALACHUVADU, KAKKANAD WEST, COCHIN 30.** **3. ABRAHAM P. GEORGE,** - **S/O.LATE P.A.GEORGE THARAKAN, SR.,AGED 73 YEAR, MANAGING PARTNER, M/ S.GEORGE FUELS, INDIAN OIL DEALER, AP IX/185-B, N.H. 47, AROOR,ALAPPUZHA DISTRICT, RESIDING AT KALATHARA PARAYIL, 1/738A, PALACHUVADU, KAKKANAD WEST, COCHIN 30.** ## **4. MARIAMMA ABRAHAM,** **W/O.ABRAHAM P.GEORGE, AGED 61 YEARS, PARTNER, M/S.GEORGE FUELS, INDIAN OIL DEALER, AP IX/185-B, N.H. 47, AROOR, ALAPPUZHA DISTRICT, RESIDING AT KALATHARA PARAYIL, 1/738A, PALACHUVADU, KAKKANAD WEST, COCHIN 30.** **5. RENU ABRAHAM MARTIN, D/O.ABRAHAM P.GEORGE, AGED 27 YEARS,PARTNER, M/S.GEORGE FUELS, INDIAN OIL DEALER, AP IX/185-B, N.H. 47, AROOR, ALAPPUZHA DISTRICT, RESIDING AT KALATHARA PARAYIL, 1/738A, PALACHUVADU, KAKKANAD WEST, COCHIN 30.** ## **BY ADV. SRI.K.N.CHANDRABABU** **Crl.MC.No. 5799 of 2014 ()** ## **--------------------------------------** ## **RESPONDENT(S)/STATE & PETITIONER/STATE & COMPLAINANT:** **----------------------------------------------------------------------------------------------** ## **1. THE STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. M/S.AMPTECH,** **REPRESENTED BY K.SREENIVASAN, S/O.P.K.KUMARAN,AGED 57 YEARS, MANAGING PARTNER, M/S.AMPTECH, 39/730, VRINDAVAN, IYYATTIL LANE, CHITTOOR ROAD, COCHIN -682 011.** **R1 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW R2 BY ADV. SRI.K.V.GOPINATHAN NAIR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **Crl.MC.No. 5799 of 2014 ()** **--------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES** **------------------------------------------** **ANNEXURE A: A TRUE COPY OF THE COMPLAINT DATED 7TH DAY OF OCTOBER 2013 FILED BY THE COMPLAINANT** **ANNEXURE B: A TRUE COPY OF THE AFFIDAVIT DATED 7TH DAY OF OCTOBER 2013 FILED BY THE COMPLAINANT** **ANNEXURE C: A TRUE COPY OF THE C.M.P NO.5920/2013 FILED BY THE COMPLAINANT IN C.M.P NO.4265/2013.** **ANNEXURE D: A TRUE COPY OF THE HAND WRITTEN ORDER DATED 8/1/2014 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT AT ERNAKULAM IN C.M.P NO.5920/2013.** **ANNEXURE E: A TRUE COPY OF THE COMPLAINT DATED 17TH DAY OF JANUARY 2014 FILED BY THE COMPLAINANT.** **ANNEXURE F: A TRUE COPY OF THE AFFIDAVIT DATED 17TH DAY OF JANUARY 2014 FILED BY THE COMPLAINANT.** **RESPONDENT(S)' ANNXURES - NIL** **----------------------------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS** ## **ALEXANDER THOMAS, J.** ## **---------------------------Crl.M.C.No.5799 of 2014** **----------------------------** Dated this the 9[th] day of October, 2017 ## **O R D E R** The order under challenge is the one rendered by the trial court concerned (Additional Chief Judicial Magistrate Court, Ernakulam) at Annexure D, whereby the application filed by the 2[nd] respondent complainant for amendment of his complaint has been allowed by the trial court on 8.01.2014. 2. Heard Sri.K.N. Chandrababu, learned counsel appearing for the petitioner(accused), Sri.K.V.Gopinathan Nair, learned counsel appearing for the 2[nd] respondent (complainant)and Sri. Jestin Mathew, learned counsel appearing for R1, State. 3. The main objection raised by the learned counsel appearing for the petitioner(accused) is that the impugned order dated 8.01.2014 at Annexure D whereby the trial court has allowed the application filed by the complainant for amendment of the complaint, causes serious prejudice to the accused and it is also pointed out that there are no provisions in the Cr.P.C. for permitting the complainant to amend his complaint and that the impugned Crl.M.C.No.5799 of 2014 2 order is illegal and ultra vires etc. Per contra Sri. K.V.Gopinathan Nair, learned counsel appearing for the 2[nd] respondent (complainant) would contend that the impugned Annexure D order dated 8.01.2014 granted by the trial court allowing Annexure C amendment application is legal and proper inasmuch as Annexure D order allowing the amendment was rendered on 8.01.2014 before the taking of cognizance in this case and that therefore allowing such an amendment is perfectly justified in the light of the dictum laid down by the Apex Court in decision in **Sukumar.S.R** v. **Sunaad** **Raghuram** reported in **(2015) 9 SCC 609=2015(3)KHC 4424** etc. 4. To resolve the nature of controversy, this Court had directed the trial court to furnish a report to state as to when exactly the cognizance of offence was taken in the present C.C.No.68 of 2014 and the date of issue of summons to the accused etc. The trial court concerned (Court of Additional Chief Judicial Magistrate, Ernakulam), has now furnished report dated 6.10.2017 stating that the records would reveal that the complaint was filed on 5.10.2013 and that on 9.12.2013 the complainant had filed an additional affidavit and the complaint was adjourned for verification on 28.12.2013 and that on 18.12.2013 an application for amendment of the complaint was filed by the complainant and that Crl.M.C.No.5799 of 2014 3 on 8.01.2014 the amendment application was allowed as per the impugned order with a direction to carry out amendment on or before 17.01.2014 and to produce the amended copy of the application. That on 17.1.2014 the amended copy of the complaint was produced and amendment was duly carried out in the complaint. It is only thereafter that on 17.01.2014 the trial court after perusal of the records and the affidavits filed by the complainant had found that there are sufficient grounds to proceed against the accused and had accordingly taken cognizance for the offence punishable under Sec.138 of the NI Act in this complaint and accordingly the complaint was taken on file on that day (17.01.2014) as C.C.No.68 of 2014. It is further ordered on 17.01.2014 to issue summons to the accused returnable by 22.02.2014. Vakalat for the accused was filed on 22.2.2014. The accused persons thereafter appeared before the trial court on 30.8.14 and were released on bail after recording their plea etc. 5. So from the above said report dated 6.10.2017 of the trial court concerned, it is evidently clear that the impugned Aannexure D dated 8.1.2014, allowing the plea for amendment was rendered only much prior to the taking of cognizance and issue of summons to the accused person. The Apex Court in the decision in **Sukumar.S.R** v. **Sunaad Raghuram** has held that though the Crl.M.C.No.5799 of 2014 4 Code of Criminal Procedure does not provide for any explicit provisions empowering the Criminal Court to consider the plea for amendment of complaint, it has been clearly held by the Apex Court in the decision in **U. P. Pollution Control Board v. Modi Distillery and others** reported in **1987(3) SCC 684** = 1987 SCC 632 that such a power to effect corrections or amendments of pleas in complaint, in order to amend or correct typographical or clerical mistakes is intrinsically available with the criminal courts. Therein the name of the complainant company was sought to be changed as Modi Industries Ltd. instead of Modi distillery and the Apex Court held as follows in para 6 of the said decision in 1987 (3) SCC 684 which reads as follows: _“6. On a combined reading of the provisions contained in subsections (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 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_ ## Crl.M.C.No.5799 of 2014 5 _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.”_ 6. Placing reliance on the above said decision in U.P.Pollution Control Board’s case (supra), the Apex Court held in the above decision in S.R.Sukumar’s case (supra) reported in 2015 (9) SCC 609 that an easily curable legal infirmity could be cured by means of an application for amendment and if the amendment sought to be made relates to a simple infirmity which is curable by means of such correction, then by allowing such amendment, no prejudice would be caused to the other side notwithstanding the fact that there are no enabling provisions for entertaining such plea of amendment, the court may permit such amendment to be made. Crl.M.C.No.5799 of 2014 6 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 court shall not allow such amendment of the complaint. Further it has been held by the Apex Court in para 20 of S.R.Sukumar’s case (supra) that in the facts of that case, the amendment application was filed on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11(b) and it was found that though the proposed amendment was not a formal amendment but a substantial one, the Magistrate had allowed the amendment application mainly on the ground no cognizance was taken of the offence in that complaint before the disposing of the amendment application. In these circumstances the Apex Court held that firstly since the Magistrate was yet to apply judicial mind on the contents of the complaint had not taken cognizance on the matter and secondly since summons on the accused was yet to be ordered, no prejudice would be caused to the accused. It is in the light of these aspects, the Apex Court held that the said impugned order allowing the plea for amendment though was of the nature of a substantial one, did not cause any prejudice to the accused inasmuch as the amendment was allowed prior to taking of cognizance and issuing of summons to the accused. Accordingly, the Crl.M.C.No.5799 of 2014 7 impugned order was not interfered with. It will be profitable to refer paras 18 to 20 of the above decision of the Apex Court in ## S.R.Sukumar’s case which reads as follows: “ _**18.** Insofar as merits of the contention regarding allowing of amendment application is concerned, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. In U.P. Pollution Control Board v. Modi Distillery wherein the name of the company was wrongly mentioned in the complaint, that is, instead of Modi Industries Ltd. the name of the company was mentioned as Modi Distillery and the name was sought to be amended. In such factual background, this Court has held as follows: (SCC pp. 659-60, para 6)_ _“6. …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 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 Para 2 of the complaint so as to make the controlling company of the industrial unit figure as the accused concerned 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 Modi Industries Limited, the company owning the industrial unit, in place of Modi Distillery. … Furthermore, the legal infirmity is of such a nature which could be easily cured.”_ _**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_ ## Crl.M.C.No.5799 of 2014 8 _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.'_ ” 7. This Court has also referred to the parameters and legal principles regulating the power of criminal court in dealing with amendment applications in the decisions of this Court in **Hafsa Rahman T. v. State of Kerala and others** reported in **2017(3) KHC 49,** etc. Going by the pleas of amendments made out in Annexure C application, it is no doubt that the nature of the amendment proposed are of substantial import. The impugned Annexure D order was rendered on 8.1.14 which is much prior to the date on which the criminal court had taken cognizance of the offence in this case as well as the issue and service of summons to the accused etc. The application for amendment was allowed on 8.1.2014. Amended complaint was filed on 17.01.2014 within the time limit granted by the court. It is only thereafter that the trial court after perusing the amended complaint and the affidavits etc have found that prima facie, the matter can proceed and had then accordingly, taken cognizance of the offence in that complaint and thereafter issued summons to the accused. Therefore as held Crl.M.C.No.5799 of 2014 9 by the Apex Court in para 20 of S.R.Sukumar’s case (supra), though the nature of the amendment certainly of substantial import, no prejudice could be said to be caused to the accused inasmuch as the plea for amendment was allowed much prior to the date on which cognizance was taken of the offence in the complaint, etc. Therefore going by the dictum laid down by the Apex Court in para 20 of S.R.Sukumar’s case (supra), the impugned order does not suffer from any serious infirmity. For these reasons the Criminal Miscellaneous case stands dismissed. Sd/- **ALEXANDER THOMAS JUDGE** IAP