M/S Pulikkattil Traders v. Basheer and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2019 / 4TH ASWINA, 1941** **Crl.MC.No.6669 OF 2019(C)** **AGAINST THE ORDER IN CMP No.15/2018 IN ST No.18/2018 DATED 20-05-2019 OF JUDICIAL FIRST CLASS MAGISTRATE-XI, KOZHIKODE.** ## **PETITIONERS/RESPONDENTS/ACCUSED:** - **1 M/S. PULIKKATTIL TRADERS, REPRESENTED BY MANAGING PARTNER, SHEENA P., W/O.PRASOBH, AGED 38 YEARS, PERUMANNA (P.O.), KOZHIKODE - 673 019.** - **2 SHEENA P., AGED 38 YEARS W/O.PRASOBH, MANAGING PARTNER, PULIKKATTIL TRADERS, PULIKKATTIL HOUSE, PERUMANNA (P.O.), KOZHIKODE - 673 019.** - **3 PRASOBH, AGED 40 YEARS MANAGING PARTNER, PULIKKATTIL TRADERS, PULIKKATTIL HOUSE, PERUMANNA (P.O.), KOZHIKODE - 673 019.** **Advs.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS/PETITIONER/COMPLAINANT & STATE:** - **1 BASHEER, AGED 38, S/O.ASSAINAR, ERANJIKKAL THAZHAM HOUSE, POOVATTUPARAMBU (P.O.), KOZHIKODE DISTRICT, PIN - 673 608.** - **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** ## **OTHER PRESENT:** ## **PP C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.6669 OF 2019(C)** **2** ## O R D E R Dated this the 26[th] day of September, 2019 Petitioners who are accused in ST No.18/2018 have approached this Court challenging the order passed by Judicial First Class Magistrate Court-XI, Kozhikode on 20.05.2019 in CMP No.15/2018. CMP No.15/2018 is an application filed by the complainant in the above prosecution seeking to amend the complaint by substituting the name of the Company as M/s.Pulikkattil Traders which has been mistakenly incorporated therein as M/s.Pulikkal Traders. The amendment secondly sought is to substitute the name of the complainant's Bank which was incorporated in the complaint originally as Calicut City Cooperative bank instead of Calicut City Service Co-operative bank. The court below has allowed the application directing the complainant to carry out the amendment within 14 days. Aggrieved by that order, the present petition is moved seeking amendment. 2. It is contended by Sri.Bindu Sasthamangalam, learned counsel for the petitioners that the court below is unjustified in **3** ## **Crl.MC.No.6669 OF 2019(C)** passing the order under challenge to the prejudice of the petitioners. He has relied on **Neeraj Cement Structurals Pvt. Ltd and another v. Bombay J.C.B Earth Movers and another** [2009 (2) KLD 56] and **S.R.Sukumar v. S. Sunaad Raghuram** [2015 (3) KLT 382 SC] to rest his contention. 3. Copy of the application filed seeking the proposed amendment is appended to the petition on hand as Annexure II. The amendment sought to be incorporated in the complaint are referred to supra. The first amendment sought is to substitute the name of the company from M/s.Pulikkal Traders to M/s.Pulikkattil Traders, and the one secondly sought is to substitute the name of its bank which has been incorporated as Calicut City Co-operative bank instead of Calicut City Service Co-operative bank, which according to him are errors crept into the complaint due to oversight. 4. The application was opposed by the respondent for the reason that amendment was sought at the post cognizance stage of the complaint and that if permitted to be brought in, it would result in substantial change in the complaint to its prejudice. In **Neeraj Cement Structurals Pvt. Ltd.** (supra), a Single Bench **Crl.MC.No.6669 OF 2019(C)** **4** of the Bombay High Court has held that when the complainant had averred in his complaint that cheques were drawn on a particular Bank, amendment seeking to change the name of the Bank, after recording the plea would result in a substantial change in the complaint and cannot be allowed. In that case, correction was sought for changing the name of the bank from Punjab National Bank to Veershaiva Co-operative Bank. The amendment sought was to incorporate the name of a different bank than the bank which was mentioned in the complaint. The change sought to be brought in the complaint being a substantial one, having due regard to the prejudice likely to be resulted to the accused that it was declined. The dictum is not liable to be drawn in the case on hand since the proposed amendment in the case on hand is only to incorporate a word that was missing. The name of the bank was shown as Calicut City Co-operative Bank and in the amendment proposed, the word 'service' was sought to be incorporated in the name to read it as Calicut City Service Co-operative Bank. This undoubtedly is not a substantial one to prejudice the accused. **Crl.MC.No.6669 OF 2019(C)** **5** ## 5. In **S.R.Sukumar** 's case (supra) the relevant portion of the judgment relied by the learned counsel was paragraph 19, which is extracted hereinbelow : “19. In the instant case, the amendment application was filed on 24.05.2007 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, 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 of India. ” 6. It was a case wherein amendment sought was in a prosecution involving commission of offences punishable under Sections 120B, 499 and 500 IPC. A complaint was filed by the **Crl.MC.No.6669 OF 2019(C)** **6** respondent therein under Section 200 Cr.P.C against the first appellant and his mother alleging that they have committed the offences aforesaid. The amendment application was filed in the said prosecution on 24.05.2007 to amend the complaint by adding two paragraphs. The amendment sought to be incorporated undoubtedly was a substantial one having the effect of changing the character of the complaint materially and therefore, it was declined. In the case on hand, certain omissions of the nature of clerical errors alone are sought to be incorporated by way of amendment. Or in other words, only some clerical errors, crept into while drafting the complaint are sought to be amended. Amendments proposed in the case on hand, if allowed, would not change the complaint materially and substantially to result in prejudice to the respondent. In the name of the bank a missing word 'service' is sought to be incorporated and in the name of the complaint the word 'Pulikkattil' is sought to be substituted for 'Pulikkal'. No changes are sought in the address of the complainant. Therefore, changes sought to be brought in cannot be said to have a material impact in the case. **Crl.MC.No.6669 OF 2019(C)** **7** 7. Undoubtedly the facts proposed to be incorporated in the complaint will not take the accused to surprise. Moreover, materials produced by the complainant alongwith the complaint also justify the proposed amendment. Therefore, it is expedient in the interest of justice to allow the amendment. The court below has allowed the petitioner seeking amendment by the impugned order. Interference with the order to reverse it, is uncalled for. In the result, Crl.M.C stands dismissed. **Sd/-** **MARY JOSEPH JUDGE** ttb **Crl.MC.No.6669 OF 2019(C)** **8** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE I TRUE COPY OF THE COMPLAINT DATED 11/04/2017.** **ANNEXURE II TRUE COPY OF THE PETITION IN C.M.P.NO.15/2018 IN S.T.NO.18/2018 DATED 14/02/2018.** **ANNEXURE III TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS.** **ANNEXURE IV CERTIFIED COPY OF THE ORDER IN C.M.P.NO.15/2018 IN S.T.NO.18/2018 DATED 20/05/2019 PASSED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE -IX, KOZHIKODE.** **/TRUE COPY/** **P.S. TO JUDGE**