Rahiyanath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19[TH] DAY OF MAY 2023 / 29TH VAISAKHA, 1945** **CRL.MC NO. 6145 OF 2021** **AGAINST THE ORDER/JUDGMENT IN ST 20/2019 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS II, PAYYANNUR** ## **PETITIONER/ACCUSED:** RAHIYANATH, AGED 40 YEARS W/O. KUNHALI, THAYYIL MUSLIYAR, VALAPPIL, KAVVAYI, KAVVAYI P. O., PAYYANNUR, KANNUR DISTRICT, PIN - 670 307. BY ADVS. K.SHIBILI NAHA A.LOWSY P.K.RADHIKA BENOY K.KADAVAN(K/347/2000)(AMICUS CURIAE) ## **RESPONDENTS/STATE & PETITIONER:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 P.P. GEETHA W/O. MURALIDHARAN, PUTHIYA PURAYIL HOUSE, PERINGOME, KANNUR DISTRICT, NOW RESIDING AT NEAR RAILWAY GATE, KOTTY, PAYYANNUR P. O., KANNUR DISTRICT - 670 307. ## **OTHER PRESENT:** SRI.M.C. ASHI, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.04.2023, THE COURT ON 19.05.2023 PASSED THE FOLLOWING: Crl.M.C.6145/2021 2 ## **ORDER** Dated this the 19[th] day of May, 2023 The petitioner is the accused in S.T. No. 20 of 2019 pending on the files of the Judicial First Class Magistrate CourtII, (Munsiff) Payyannur. The case originated from a complaint filed against the petitioner alleging commission of the offence under Section 138 of the Negotiable Instruments Act. The complaint was filed by Smt. P.P. Geetha, aged 47 years, D/o. Ambu Kerala Varman, Pacheni House, Near Toddy Shop, Annur, Annur P.O., Kannur District. After the petitioner entering appearance, the complainant filed C.M.P. No. 573 of 2021 (Annexure A) praying for permission to amend the cause title of the complaint by altering her address as “W/o. Muralidharan, Puthiya Purayil House, Peringome, Kannur Dt., now residing at Near Railway Gate, Kotty, P.O. Payyanur, Kannur Dist., PIN 670 307.” The petitioner filed objection to the amendment application stating that, statutory notice had been issued and the complaint filed showing the address as 'P.P. Geetha, aged 47 years, D/o. Ambu Kerala Varman, Pacheni Crl.M.C.6145/2021 3 House, near Toddy Shop, Annur, Annur P.O., Kannur District670 327'. Hence, the amendment if allowed, will have the effect of changing the identity of the complainant and cause substantial prejudice to the petitioner. It was also submitted that the appellant had failed to produce any document to prove that complainant and the applicant are one and the same person. By the impugned order, the amendment application was allowed, finding that the amendment relates to mere curing of a simple infirmity, which would not cause any prejudice to the accused. Aggrieved, this Crl.M.C. is filed. 2. Heard Adv. Lowsy A. learned counsel for the petitioner and Adv. Benoy Kadavan learned Amicus Curie. The complainant/2[nd] respondent has not appeared despite service of notice. 3. The question whether a criminal complaint filed under Section 200 can be amended in the absence of any provision in the Code of Criminal Procedure was considered by the Supreme Court in **U.P. Pollution Control Board v. Modi Distillery and Others** [(1987) 3 SCC 684]. Therein, the infirmity in the complaint was with respect to the non- Crl.M.C.6145/2021 4 impleadment of the company as an accused. This resulted in the Directors of the company, who were arrayed as accused, challenging the order taking cognizance. The challenge was upheld by the High Court. The Apex Court interfered with that judgment and found fault with the Single Judge for having focused his attention only on the technical flaw in the complaint. It was also observed that the infirmity was one which could be easily removed by having the matter remitted to the trial court with a direction to the appellant to make the requisite amendment by arraying the controlling company as an accused. The decision in **U.P. Pollution Control Board** (supra) was relied on by the Apex Court in **S.R. Sukumar v. S. Sunaad Raghuram** [(2015) 9 SCC 609]. The relevant portion of that judgment reads as under; “19. What is discernible from _U.P. Pollution Control Board case_ [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] 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 Crl.M.C.6145/2021 5 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.” This Court also had occasion to consider the power of criminal courts to permit amendment of complaints, the first among those decisions being **Madhavi v. Thupran** (1987 (1) KLT 488). Therein, in the maintenance case filed by the petitioner, she had mistakenly shown her name as 'Malathi' instead of 'Madhavi'. Her petition for permission to correct the name as Madhavi was dismissed by the Magistrate, holding that the prayer, if allowed, will amount to amendment of pleading for which the criminal court has no jurisdiction. That finding having been upheld by the Sessions Court in revision, the petitioner sought intervention by invoking the inherent jurisdiction of this Court. By a well considered judgment, the learned Single Judge allowed the Crl.M.C. Paragraph 6 of the judgment being contextually relevant is extracted hereunder; “6. In this case we are not concerned with the question whether a criminal court has the power to allow amendment of pleadings. What was involved was only a correction of a clerical Crl.M.C.6145/2021 6 mistake to do justice to the parties. To say that even after being convinced of the genuineness of the mistake the court is powerless to grant relief cannot be accepted. When parties had no dispute that first petitioner is Madhavi, the wife of the respondent and mother of the minors, how can the court refuse relief on the technical ground that a wrong name is given in the petition. Courts are existing for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand. Even though inherent power saved under S.482 of the Cr. P.C. is only in favour of High Courts, the subordinate criminal courts are also not powerless in cases like this 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. Under such circumstances in order to do what is absolutely necessary in the ends of justice or prevent prejudice or miscarriage of justice what is not prohibited could be taken as permitted because the Code of Criminal Procedure cannot be taken to have contemplated and provided for every contingency by making exhaustive provisions to meet the situations. 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 unnecessarily prejudice somebody else. A different view was taken by another learned Judge in **Linda John Abraham v. Business India Group Company and** **Others** (2011 (4) KLT 787). One of the reasons which prompted the court to deny permission for amendment was that the amendment goes to the core of the matter and if Crl.M.C.6145/2021 7 allowed, would result in substantial change in the complaint. Recently in **Kuttan v. Varanamalyam Kuries (P) Ltd. and Another** (2020 (1) KHC 551) the legal position has been succinctly laid down in the following words; “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 S.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 nature and character of the complaint, the court shall now allow it as it would cause grave prejudice to the accused.” 4. From the above precedents, it comes out that, absence of a specific provision for amendment in the Code or the Negotiable Instruments Act does not fetter the court's power to allow formal amendment of a complaint, if the amendment could not cause prejudice to the accused. In the instant case, the amendment sought is with respect to the Crl.M.C.6145/2021 8 address of the complainant. As rightly held by the trial court, the amendment will not change the character of the complaint or cause prejudice to the accused. In this regard it is pertinent to note that the requirement under Section 138 (b) is for the payee or the holder in due course of the cheque, to make a demand for payment of the cheque amount by giving a notice in writing to the drawer of the cheque. The said requirement stands satisfied with issuance of notice by P.P. Geetha. The fact that a wrong address was shown in the notice is irrelevant, since the petitioner had not replied to the notice and has no case that the reply could not be served as the address was wrong. It is also not discernible as to how the wrong address shown in the complaint causes any sort of prejudice to the accused. Although learned counsel for the petitioner contended that the notice was issued and the complaint instituted by P. Geetha and not P.P. Geetha, neither a copy of the notice or the complaint is seen produced. Moreover, in the impugned order the learned Magistrate has specifically stated that notice was issued and the complaint filed by P.P. Geetha. As rightly observed by the learned Magistrate, if the Crl.M.C.6145/2021 9 petitioner has a case that the payee of the cheque and the complainant are different persons, she can bring out that fact at the evidence stage. In the result, the Crl.M.C. is dismissed. I place on record my appreciation for the valuable help rendered by the Amicus Curie. **Sd/-** **V.G.ARUN JUDGE** sb Crl.M.C.6145/2021 10 ## **APPENDIX OF CRL.MC 6145/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure A|TRUE COPY OF THE PETITION DATED 17.08.2021| ||SEEKING AMENDMENT FILED BY THE 2ND RESPONDENT| ||AS C.M.P.NO.573/2021.| |Annexure B|TRUE COPY OF THE COUNTER FILED BY THE| ||PETITIONER TO ANNEXURE A APPLICATION.| |Annexure C|CERTIFIED COPY OF THE ORDER IN| ||C.M.P.NO.573/2021 DATED 08.11.2021.|