Wilson & Paris Electricals Traders v. State of Kerala and M/S Jos Electricals (Agencies)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930** **Crl.MC.No. 4455 of 2003()** **------------------------------------** **CC.2471/1998 of CHIEF JUDL.MAGISTRATE, ERNAKULAM** **....................** ## **PETITIONERS: ACCUSED:** **--------------------------------** **1. WILSON, MANAGING PARTNER, PARIS ELECTRICALS TRADERS, ROUND BUILDING, VADAKKANCHERRY ROAD, KUNNAMKULAM.** **2. M/S. PARIS ELECTRICALS TRADERS, ROUND BUILDING, VADAKKANCHERRY ROAD, KUNNAMKULAM, REPRESENTED BY ITS MANAGING PARTNER WILSON.** **BY ADV. RAMAKUMAR (SR.)** ## **RESPONDENTS: COMPLAINANT & STATE:** **--------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. M/S. JOS ELECTRICALS (AGENCIES), M.G.ROAD, ERNAKULAM, COCHIN-35, REPRESENTED BY POWER OF ATTORNEY HOLDER, MR.K.J.JACOB.** **BY PUBLIC PROSECUTOR SHRI C.M. NAZAR SRI.V.J.MATHEW FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ALONG WITH CRL. M.C. NO.4490 OF 2003 & CONNECTED CASES ON 26.3.2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **vsv** ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.4455, 4490, 4558 & 4565 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of March 2008 ## **ORDER** These four Criminal Miscellaneous Cases filed under Section 482 of the Code of Criminal Procedure are being disposed of by this common order, since the parties and the issue involved in them are common. 2. The common petitioners in these cases are being prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act before the Chief Judicial Magistrate's Court, Ernakulam in four Calender Cases namely, C.C.2471/98, 2469/98, 2342/98 and 2345/98. 3. Petitioners are a partnership firm and its managing partner. They seek to quash the proceedings pending against them before the lower court primarily on the ground that the learned Magistrate had committed serious illegality and irregularity by allowing a petition filed on behalf of the complainant to substitute the name of the managing partner of the firm in the course of the proceedings. ## Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003 :: 2 :: 4. Respondent No.1 had filed the four complaints against the firm and its Managing Partner alleging that the four cheques issued by the managing partner on behalf of the firm in discharge of a legally enforceable debt were dishonoured when they were presented for encashment. According to the complainant, the amount covered under the four cheques represented the value of electrical goods purchased by the firm from the complainant. The cheques were dishonoured due to insufficiency of funds in the account of the firm/accused. In spite of service of the statutory demand notice on the accused, the liability was not discharged. 5. It is beyond controversy that the complainant had arraigned Mr.Selvam, the brother of petitioner No.1 as the Managing partner/first accused in a representative capacity in the complaint. Mr.Selvam was also implicated as accused No.2 in his capacity as the managing partner of the firm. It appears that in the course of the proceedings an application was filed on behalf of the complainant “seeking permission of the court to ## Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003 **==> picture [42 x 10] intentionally omitted <==** correct the name of the accused”. A copy of the said application is available on record as Annexure B. In the said application filed by the learned counsel for the complainant, it was averred that the name of the managing partner was shown as Selvam in the complaint due to “an inadvertent typographical mistake” committed by his clerk. It was further averred that the managing partner of the firm was not Mr.Selvam but Mr.Wilson, petitioner No.1 herein. The said mistake was noticed only when the court had directed the complainant to furnish the correct address of the accused, as the summons issued to the accused had been returned without service; the learned Magistrate had allowed the prayer. Resultantly, petitioner No.1 was arraigned as accused in his capacity as the Managing Partner of the firm. 6. It is contended by Sri.Ram Kumar, learned Senior counsel for the petitioner that the learned Magistrate had no inherent power or jurisdiction to correct the name of the accused in the course of the proceedings and that too without issuing notice on the application submitted on behalf of the complainant. ## Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003 :: 4 :: It is further contended that the application filed by the learned counsel on behalf of the complainant was by itself incompetent. Since there is no provision in the Code of Criminal Procedure to substitute one person with another as an accused in a complaint, the order of the learned Magistrate is wholly without jurisdiction, especially because a criminal court is not vested with any inherent power. 7. At the very outset it may be noticed that Sri.Wilson, petitioner No.1 does not have a case that he is not the managing partner of the firm. Not only that, he has described himself as managing partner in the petitions filed by him before this court. He had signed the vakalath before this court as well as the trial court describing him as managing partner under the seal of the firm. I have also perused the trial court records. It is seen from the cheque that it was signed by the managing partner. The signature in the cheque and that of petitioner No.1 in the vakalath filed before this court as well as before the trial court is exactly similar and identical to the naked eye. As mentioned ## Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003 **==> picture [42 x 10] intentionally omitted <==** earlier, petitioner does not have a case that he was not the managing partner of the firm at the relevant point of time or that he had not signed the cheque. His only grievance is that the complainant having initially implicated his brother Selvam as the managing partner in the four complaints, it was not open to him to delete the name of Mr.Selvam from the party array and to implead petitioner No.1 at a later stage. This according to the petitioner was without jurisdiction. I am unable to agree. 8. Having regard to the entire facts and circumstances, especially on perusal of the trial court records, I have no hesitation to repel the above contention raised by the petitioners. In this context, it may also be noticed that the complainant had addressed the statutory demand notice to the Managing Partner of the firm without mentioning any name. The notice was accepted by the authorised signatory. But while filing the complaint, the name of Mr.Selvam, the brother of petitioner No.1, was wrongly shown in the cause title. In the application filed by the learned counsel for the complainant, it was ## Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003 **==> picture [42 x 10] intentionally omitted <==** specifically averred that the above inadvertent mistake was committed by his clerk. In my view, the learned Magistrate was justified in allowing the prayer for correction. 9. As indicated earlier, petitioner No.1 has not disputed his status as the Managing Partner of the firm. The signature in the cheque and that of petitioner No.1 are exactly similar to the naked eye. Therefore, I am satisfied that the order of the learned Magistrate cannot be faulted. The correction of the name of the accused would serve the interest of justice. In **Madhavi v. Thupran (1987 (1) KLT 488)** this court had held correcting a mistake in the name for the purpose of bringing justice was within the competence of any criminal court. Similarly, in **Ninan** **v. Rufus Olivero [1994 (1) KLT 984]** , this court took the view that the name of the accused in a complaint under Section 138 of the Negotiable Instruments Act can be corrected, if there was no dispute with regard to the identity and also if all other statutory formalities had been complied with. 10. Lastly, learned senior counsel has raised a contention ## Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003 :: 7 :: that there was no specific averment against petitioner No.1 in the complaint. He invites my attention to a recent decision of their Lordships of the Supreme Court in **Sabitha Ramamurthy v. Channabasavaradhya [2006 (4) KLT 1017 (SC)]** and in **Saroj Kumar Poddar v. State (Nct of Delhi) and another [2007 (3) SCC 693]** . I do not propose to deal with the above contention at this stage, since the primary challenge was against the order passed by the learned Magistrate substituting the name of the accused. Moreover, no such ground was raised by the petitioners in the memorandum of Criminal M.C. It is made clear that it will be open to the petitioners to urge all their contentions before the trial court at the appropriate stage. Criminal M.Cs. are dismissed with the above observation. **(A.K.BASHEER, JUDGE)** jes