Licensed to Adv.

Rajeev & Sayujya 2020 ICO 51 Page 1 of 4

2020 ICO 51

2020 (1) KLJ 877

22-01-2020
High Court of Kerala

Crl.M.C. No.8798 of 2019

Justice R Narayana Pisharadi

Kuttan ( Represented by, Bijo Francis (Adv.) & Jose Kuriakose (Adv.) & Jacob George (Adv.) )

Vs.

Varanamalyam Kuries Private Limited & Anr ( Represented by, Sheji P Abraham (Adv.) & P N Sumodu (PP)
)

Equivalent Citations : 2020 (1) KLT 445 :: 2020 (1) KLJ 877 :: 2020 (1) KHC 551

Referred Citations : 1987 ICO 1351,1988 ICO 1303,2011 ICO 1570,2017 ICO 877

Mentioned in Citations : 2023 ICO 836

Headnotes :-

A. Negotiable Instruments Act 1881 - Section 138 and Code of Criminal Procedure, 1973 - Section 482
- There is no provision in the Code of Criminal Procedure or in the Act prohibiting amendment of
complaint. The inherent power saved under Section 482 of the Code, is only in favour of High Courts,
the subordinate criminal courts are not powerless 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. In such circumstances, in order to do what is absolutely
necessary in the ends of justice or to prevent prejudice or miscarriage of justice, what is not
prohibited could be taken as permitted. ( Para 10 )

B. Negotiable Instruments Act 1881 - Section 138 - 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 Section 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. ( Para 14 )

C. Negotiable Instruments Act, 1881 – Section 138 – Whether the amendment in the compliant can be
allowed? Held; 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 not allow it as it would cause grave prejudice to the accused. (Para 14)

D. Negotiable Instruments Act 1881 - Section 138 – Amendment to the complaint - Even if there is no
averment at all in the complaint with regard to the original transaction, it will not affect the
maintainability of the complaint, if it contains averments which constitute the ingredients of an

Generated on 2023-11-08 © 2023 Kerala Law Journal indiancases.com

Licensed to Adv. Rajeev & Sayujya 2020 ICO 51 Page 2 of 4

offence under Section 138 of the Act. But, on this ground, the prayer for amendment of the complaint
cannot be allowed. In a case where the details of the original transaction are mentioned in the
complaint, if drastic change is made by way of amendment to such details at a stage when evidence in
the case is about to commence, it would cause serious prejudice to the accused. (Para 17)

E. Negotiable Instruments Act 1881 - Section 138 - The amendment sought by the complainant is only
to correct typographical error and clerical mistake in the complaint. If mistake has occurred in the
complaint in stating relevant facts, the only way of correcting it is in the course of evidence. The
complainant cannot be allowed to remove or erase or change his original version of the transaction in
the complaint, though he would be free to state in evidence that he has made a wrong or incorrect
statement in the complaint.(Para 20)

ORDER

R.Narayana Pisharadi, J.

1. The petitioner is the accused in the case C.C.No.4199/2014 on the file of the Court of the Judicial First
Class Magistrate-I, Thrissur.

2. The aforesaid case is instituted upon the complaint (Annexure-A1) filed by the first respondent company
(hereinafter referred to as 'the complainant') against the petitioner for an offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

3. The material averments in Annexure-A1 complaint are as follows: The accused had joined the 9th day
monthly kuri started by the complainant company on 09.02.2007 as per statement No.10. He had bid the kuri
on 09.02.2007. The kuri amount was paid to him by the complainant. An amount of Rs.50,320/- was due to
the complainant from the accused in the kuri transaction. Towards that amount, the accused signed and gave
a cheque dated 20.11.2010 in favour of the complainant. The complainant presented the cheque in the bank.
It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The
complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The
accused received the notice. He did not pay the amount of the cheque.

4. The complainant filed Annexure-A4 application for amendment of the complaint. The amendment, which
was prayed for by the complainant, was as follows: The date of commencement of the kuri has to be
corrected as 05.10.2006 instead of 09.02.2007. The monthly day of the kuri has to be corrected as 5th day
instead of 9th day. The averment that the accused joined the “9th day monthly kuri as per statement No.10”
has to be substituted as “5th day monthly kuri as per statement No.31”. The date on which the accused bid
the kuri has to be corrected and substituted as 05.12.2006 instead of 09.02.2007.

5. The petitioner filed Annexure-A5 objection to Annexure-A4 application, contending that if the
amendment was allowed it would cause serious prejudice to him.

6. As per Annexure-A6 order, the trial court allowed the application for amendment of the complaint. The
aforesaid order is challenged in this petition filed under Section 482 Cr.P.C.

7. Heard learned counsel for the petitioner and also the first respondent.

8. Learned counsel for the petitioner contended that the amendment of the complaint allowed by the trial
court as per Annexure-A6 order is of a substantial character and not a formal one. Learned counsel would
contend that the amendment of the complaint would cause serious prejudice to the petitioner/accused in the
defence to be adopted in the case.
Generated on 2023-11-08 © 2023 Kerala Law Journal indiancases.com
Licensed to Adv. Rajeev & Sayujya 2020 ICO 51 Page 3 of 4

9. Learned counsel for the respondent submitted that the amendment was sought only to correct the
typographical error and clerical mistake committed while drafting the complaint and the trial court was
perfectly justified in allowing the amendment of the complaint.

10. There is no specific provision dealing with amendment of complaint in a criminal case. There is also no
provision in the Code of Criminal Procedure or in the Act prohibiting amendment of complaint. It is well
settled that, even though inherent power saved under Section 482 Cr.P.C is only in favour of High Courts,
the subordinate criminal courts are not powerless 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. In such circumstances, in order to do what is absolutely necessary in the
ends of justice or to prevent prejudice or miscarriage of justice, what is not prohibited could be taken as
permitted. 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 cause prejudice to a party.
Inherent powers of courts are in addition to and complementary to the powers specifically conferred on
them. But, inherent powers cannot be exercised against express provisions of law. If there are specific
provisions in the Code of Criminal Procedure dealing with particular topic and when they expressly or by
necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in
relation to a matter, inherent powers cannot be invoked. Inherent power has to be exercised judiciously and
not arbitrarily or capriciously (Madhavi v. Thupran : 1987 (1) KLT 488 :: 1987 KLJ 737 :: 1987 ICO 1351
and Aliyar v. Pathu : 1988 (2) KLT 446 :: 1988 ICO 1303).

11. In Sukumar v. Sunaad Reghuram : AIR 2015 SC 2757, the Supreme Court has held as follows: “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”.

12. Linda John Abraham v. Business India Group Company : 2011 (4) KHC 587 : 2011 (4) KLT 787 :: 2011
(4) KLJ 714 :: 2011 ICO 1570 was a case in which the complainant filed a petition for amendment to
introduce a plea to the effect that the directors of the company were/are persons in charge of and responsible
for the conduct of the business of the company. Learned Magistrate dismissed the application for
amendment. This Court upheld the order of the learned Magistrate stating that the proposed amendment
cannot be allowed to be treated as a correction to cure a clerical mistake and the amendment would go to the
core of the matter and if the amendment was allowed, it would cause serious prejudice to the accused.

13. In Hafsa Rahman v. State of Kerala : 2017 (3) KHC 49 :: 2017 (3) KLJ 190 :: 2017 ICO 877, the
amendment of the complaint proposed was for correcting the name of the person who had signed the
cheque. All that the complainant sought in that case was for correcting the words "2nd accused" appearing in
paragraph 6 of the complaint as "4th accused". This Court permitted amendment of the complaint. This
Court held that a formal amendment for curing an infirmity, especially of the nature of clerical or
typographical error, which would not change the nature of the complaint, could be allowed, so long as it
does not cause any serious prejudice to the accused.

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 Section 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
Generated on 2023-11-08 © 2023 Kerala Law Journal indiancases.com
Licensed to Adv. Rajeev & Sayujya 2020 ICO 51 Page 4 of 4

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 not allow it as it would cause grave prejudice to the accused.

15. In the instant case, by the proposed amendment, the complainant wants to change the averments in the
complaint with respect to the following matters: (1) the number of the kuri which the accused had
subscribed (2) the date on which the accused joined the kuri and (3) the date on which the accused bid the
kuri.

16. In my view, the proposed amendment of the complaint is not formal in nature. It cannot also be found
that the amendment sought is for correcting any clerical mistake or typographical error.

17. It is true that the amendment sought, if allowed, will not change the nature and the character of the
complaint or the cause of action for filing the complaint. The original transaction is not the cause of action
for filing a complaint for an offence under Section 138 of the Act. The dishonour of the cheque for want of
sufficient funds in the account of the drawer of the cheque and non-payment of the amount of the cheque by
the drawer within the period stipulated on receipt of statutory notice from the payee constitute the cause of
action for a complaint for an offence under Section 138 of the Act. Even if there is no averment at all in the
complaint with regard to the original transaction, it will not affect the maintainability of the complaint, if it
contains averments which constitute the ingredients of an offence under Section 138 of the Act. But, on this
ground, the prayer for amendment of the complaint cannot be allowed. In a case where the details of the
original transaction are mentioned in the complaint, if drastic change is made by way of amendment to such
details at a stage when evidence in the case is about to commence, it would cause serious prejudice to the
accused.

18. The fact that the statutory notice sent by the complainant to the accused contains the correct details of
the original transaction is not a sufficient ground to allow the prayer for amendment of the complaint.

19. It is relevant here to note that the complaint was filed in February, 2011 but the application for
amendment was filed only on 11.10.2019.

20. The court below has gone wrong in finding that the amendment sought by the complainant is only to
correct typographical error and clerical mistake in the complaint. It is really a mistake in making correct
statement of facts. If mistake has occurred in the complaint in stating relevant facts, the only way of
correcting it is in the course of evidence. The complainant cannot be allowed to remove or erase or change
his original version of the transaction in the complaint, though he would be free to state in evidence that he
has made a wrong or incorrect statement in the complaint.

21. In the aforesaid circumstances, I find that Annexure-A6 order passed by the learned Magistrate is not
sustainable in law. It is liable to be set aside.

22. Consequently, the petition is allowed. Annexure-A6 order passed by the learned Magistrate, allowing
Annexure-A4 application for amendment of the complaint, is set aside. The learned Magistrate shall proceed
with the trial of the case as if no amendment has been made to the complaint. The complainant is at liberty
to adduce evidence to show that the averments in the complaint regarding the original transaction are
incorrect or wrong.

--- End ---

Generated on 2023-11-08 © 2023 Kerala Law Journal indiancases.com