Rathish Sivakumar v. Neena Sachithanandan and State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ``` CRL.MC NO. 6064 OF 2019 ``` ``` AGAINST THE ORDER IN S.T.NO.34/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, OTTAPPALAM ``` ## `- PETITIONER/ACCUSED :` ``` RATHISH SIVAKUMAR, AGED 36 YEARS S/O.SIVAKUMAR ACHATH, SIVAKRIPA, PALAT ROAD, P.O.OTTAPALAM REPRESENTED BY POWER OF ATTORNEY HOLDER RADHIKA KUMAR, AGED 59 YEARS, W/O.SIVAKUMAR ACHATH, PALAT ROAD, ``` ``` P.O.OTTAPALAM, PALAKKAD DISTRICT. ``` ``` BY ADV P.JAYARAM ``` ## `- RESPONDENTS :` ``` 1NEENA SACHITHANANDAN W/O.T.C.SACHITHANANDAN, THALIYADAN HOUSE, PALAT ROAD, P.O.OTTAPALAM, ``` ``` PALAKKAD DISTRICT, PIN-679 101. ``` - `2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.` ``` BY ADV SRI.P.M.UNNI NAMBOODIRI ``` ``` SRI.RENJITH GEORGE, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.02.2023, ALONG WITH Crl.MC.6078/2019, 6086/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:2:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 ``` ## `CRL.MC NO. 6078 OF 2019` ``` AGAINST THE ORDER IN S.T NO.35/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, OTTAPPALAM ``` ## `PETITIONER/ACCUSED :-` ## `RATHISH SIVAKUMAR` ``` AGED 36 YEARS,S/O. SIVAKUMAR ACHATH, SIVAKRIPA, PALAT ROAD, P.O. OTTAPALAM REPRESENTED BY POWER OF ATTORNEY HOLDER RADHIKA KUMAR, AGED 59 YEARS, W/O SIVAKUMAR ACHATH, PALAT ROAD, P.O. OTTAPALAM, PALAKKAD DISTRICT. ``` ## `BY ADV P.JAYARAM` ## `- RESPONDENTS :` - `1 NEENA SACHITHANANDAN, W/O. T.C.SACHITHANANDAN, THALIYADAN HOUSE, PALAT ROAD, P.O. OTTAPALAM, PALAKKAD DISTRICT, PIN-679 101.` - `2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,` ``` HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` BY ADV SRI.P.M.UNNI NAMBOODIRI ``` ``` SRI.RENJITH GEORGE, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.02.2023, ALONG WITH Crl.MC.6064/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:3:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 CRL.MC NO. 6086 OF 2019 ``` ``` AGAINST THE ORDER IN S.T NO.39/2017 OF JUDICIAL MAGISTRATE ``` ``` OF FIRST CLASS - II, OTTAPPALAM ``` ## `- PETITIONER/ACCUSED :` ``` RATHISH SIVAKUMAR, AGED 36 YEARS S/O.SIVAKUMAR ACHATH, SIVAKRIPA, PALAT ROAD, P.O.OTTAPALAM REPRESENTED BY POWER OF ATTORNEY HOLDER RADHIKA KUMAR, AGED 59 YEARS, W/O.SIVAKUMAR ACHATH, PLAT ROAD.P.O. OTTAPALAM, PALAKKAD DISTRICT. ``` ## `BY ADV P.JAYARAM` ## `- RESPONDENTS :` - `1 NEENA SACHITHANANDAN, W/O.T.C.SACHITHANANDAN, THALIYADAN HOUSE, PALAT ROAD, P.O. OTTAPALAM PALAKKAD DISTRICT, PIN-679101` - `2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031` ``` BY ADV SRI.P.M.UNNI NAMBOODIRI SRI.RENJITH GEORGE, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.02.2023, ALONG WITH Crl.MC.6064/2019 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:4:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of February, 2023 ## ORDER Challenge in these petitions filed under Section 482 of the Code of Criminal Procedure, 1973 was raised against an order passed by Judicial First Class Magistrate-II, Ottapalam on 06.05.2019 in Crl.M.P. No.472/18, 473/18 and 474/18 filed respectively in ST Nos.34/17, 35/17 & 39/17. 2. Crl.M.P. No.473/18 and 474/18 are petitions filed in the above prosecutions launched by the petitioner before the court mentioned above, under Section 142 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) on the basis of a cheque allegedly issued by the respondent in favour of the petitioner and stands bounced on presentation for encashment. The above petitions were filed by the complainant in prosecutions numbered as above seeking to amend the complaint filed by him to the effect that the power of attorney holder Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:5:- representing him infact has direct knowledge about the alleged transaction. It was contended by the respondent in the petitions above that the amendment sought is impermissible as it is meant to fill up the lacuna in the complaints already filed to launch the prosecution and taken congnizance of. The court below has observed, based on the dictum of this Court in Hafsa Rahman T. v. State of Kerala and Others [2017 (3) KHC 49], that typographical or clerical mistake in the complaint can be allowed to be corrected. The dictum in the case reads:- “When complainant does not seek to incorporate a new plea, but to correct a typographical or clerical mistake which does not cause any serious prejudice to the accused or does not change the nature of the complaint, such correction can be allowed.” The court observed that the amendment sought for in the case on hand is neither typographical or clerical mistake, rather, introduction of a new plea by way of amendment, which according to the court would undoubtedly impact serious prejudice to the accused. Accordingly petitions were dismissed. Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:6:- 3. It is pertinent to note from the cause title of the impugned order that petitioner in the Crl.M.P.s referred to above wherein the impugned order was passed, is one Ratheesh Sivakumar, S/o.Sivakumar Achath who is none other than the complainant in the prosecutions pending on the files of Judicial First Class Magistrate Court-II, Ottapalam. Going by the copies of the complaint launched under Section 142 N.I. Act appended to the petitions on land, Mr.Ratheesh Sivakumar has filed the complaint in person and not represented by a person as his power of attorney holder. When the complaint is filed by the complainant himself and not by his power of attorney holder, the pleadings now sought to be incorporated in the complaints are irrelevant. If permitted to be incorporated, that undoubtedly would change the character of the complaint and resulted in prejudice to the accused. 4. It is revealed from the cause title that the complainant has filed the complaint in person and not represented by his mother as the power of attorney holder. The power of attorney referred to is also made available alongwith the complaint. Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 **==> picture [21 x 9] intentionally omitted <==** 5. In the above circumstances, the pleadings now sought to be incorporated in the complaint by way of amendment are impermissible. The court below dismissed the applications seeking amendment. Though on a different footing, the order of dismissal being correct, this Court is declined to reverse it. The Crl.M.Cs fail for the reasons and are dismissed. Sd/- MARY JOSEPH, JUDGE. ttb Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:8:- ## `APPENDIX OF CRL.MC 6064/2019` ``` PETITIONER ANNEXURES :- ANNEXURE A1TRUE COPY OF THE COMPLAINT IN ST NO.34/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM. ``` ``` ANNEXURE A2TRUE COPY OF THE PETITION DATED 27.09.2018 IN CRL.M.P.NO.472/2018 IN ST NO.34/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM. ``` ``` ANNEXURE A3TRUE COPY OF THE COUNTER STATEMENT DATED 24.10.2018 IN CRL.MP NO.472/2018 IN ST NO.34/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM. ``` ``` ANNEXURE A4COPY OF THE COMMON ORDER DATED 06.05.2019 IN CRL.MP NO.472/2018 IN ST CASE NO.34/2017, CRL.MP NO.473/2018 IN ST.NO.35/2017 AND CRL.MP NO.474/2018 IN ST.NO.39/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, OTTAPALAM. ``` Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:9:- ## `APPENDIX OF CRL.MC 6078/2019` ## `- PETITIONER ANNEXURES :` ``` ANNEXURE A1TRUE COPY OF THE COMPLAINT IN S.T.NO.35/2017, ON THE FILES OF JUDICIAL FIRST CLASS MAIGSTRATE, OTTAPALAM. ``` ``` ANNEXURE A2TRUE COPY OF THE PETITION DATED 27.9.2018 IN CRL M.P.NO.473/2018 IN S.T.CASE NO.35/2017 ON THE FIELS OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, OTTAPALAM. ANNEXURE A3TRUE COPY OF THE COUNTER STATEMENT DATED 24.10.2018 IN CRL.M.P.NO.473/2018 IN S.T.CASE NO.35/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, OTTAPALAM. ``` ``` ANNEXURE A4COPY OF THE COMMON ORDER DATED 6.5.2019 IN CRL.M.P.NO.422/2018 IN S.T.CASE NO.34/2017,CRL.M.P.NO.473/2018IN S.T.NO.35/2017 & CRL.M.P.NO.474/2018 IN S.T.NO.39/2017, ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, OTTAPALAM. ``` Crl.M.C. Nos. 6064, 6078 & 6086 of 2019 -:10:- ## `APPENDIX OF CRL.MC 6086/2019` ## `- PETITIONER ANNEXURES :` ``` ANNEXURE A1TRUE COPY OF THE COMPLAINT IN ST NO.39/2017 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE, OTTAPALAM. ``` ``` ANNEXURE A2TRUE COPY OF PETITION DATED 27/09/2018 IN CRL.M.P.NO.474/2018 IN ST CASE NO.39/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, OTTAPALAM. ``` ``` ANNEXURE A3TRUE COPY OF THE COUNTER STATEMENT DATED 24.10.2018 IN CRL.M.P.NO.474/2018 IN ST CASE NO.39/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE-II, OTTAPALAM ``` ``` ANNEXURE A4COPY OF COMMON ORDER DATED 6/5/2019 IN CRL.M.P.NO.472/2018 IN ST NO.34/2017, CRL.M.P.NO.473/2018 IN ST.NO.35/2017 AND CRL.M.P.474/2018 IN ST NO.39/2017 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE -II, OTTAPALAM ```