সতর্কীকরণ! কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে কেস রেফারেন্স ওয়েবসাইট কোন নিশ্চয়তা প্রদান করে না। কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
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 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 or 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.
6. Correcting a mistake in the name for the purpose of doing justice is within the competence of any criminal court. Even in criminal cases during investigation, enquiry or trial we find wrong names being deleted and correct names included or substituted and mistakes corrected. That is something necessary in the ends of justice to avoid a wrong person being prosecuted or punished or to enable an offender being brought to justice. What is prohibited under S. 362 of the Code itself is only altering or reviewing judgment or final order disposing of a case after it is signed. Even in such cases correction of a clerical or artithemetical error is permitted. Even a charge could be amended in appropriate cases. If so nothing prevents a clerical or arithmetical error in an FIR or a police charge or some other paper being corrected in the ends of justice. For the same reason nothing prevents a mistake in the pleadings in a proceeding under S. 125 of the Code being corrected in order to justice to the parties. Madhavi v. Thupran 1987 (1) KLT 488 = 1987 KHC 150
The learned Single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the complaint so as to make the controlling company of the industri- al unit figure as the concerned accused in the complaint. All that has to be done is the making of a formal application for amendment by the appellant for leave to amend by substituting the name of Messrs Modi Industries Limited, the Company owning the industrial unit, in place of Messrs Modi Distillery. U. P. Pollution Control Board .vs. M/s Modi Distillery and others, reported at (1987) 3 SCC 684 3
It is not disputed that there is no specific provision dealing with the amendment of the complaint. There is also no provision preventing the Court from allowing the amendment in complaint in such a case. From the aforesaid provisions and particularly, the fact that the Magistrate takes cognizance of the offence, this Court holds that the Magistrate has incidental and ancillary power to the main power of taking cognizance of offence to allow such amendment. In view of the discussion made above, this Court further holds that the power can be exercised before and after taking cognizance of the offence in a case like present one. Amol Shripal Sheth .vs. M/s Hari Om Trading Co. Ltd. reported at (2014) 6 Mh.L.J. 222
24. In view of the law laid down in the decisions considered above, I am of the view that the learned Magistrate was not right in granting the amendment. The learned Magistrate has failed to take into consideration this primary legal issue. The amendment application made by the complainants could not have been decided without addressing this issue. It has been held consistently that if a cheque is issued on behalf of the company or the partnership firm, then the company or the partnership firm in case of dishonour of cheque is the principal accused. It is held that in the absence of the company or the firm as an accused, the complaint against the directors or partners is not maintainable. It is held that considering the mandatory provisions of Section 138 of the N.I. Act and its scheme, the defect of this kind cannot be rectified subsequently by amending the complaint by adding the company or firm as an accused. All the earlier decisions have been considered by the Hon'ble Apex Court in the case of Pawan Kumar Goel (supra).
25. In the facts and circumstances, in my view, the amendment application was not at all maintainable. There was a legal defect in the complaint itself. The defective complaint could not have been amended by incorporating the facts set out in the application. The accused have admitted that they are the Partners of the firm. They have stated the reasons for giving intimation to the bank to stop the payment. In this case, the contention that certain important facts are undisputed at the behest of the accused and therefore, no prejudice would be caused to the accused by amending the complaint, cannot be entertained. The grant of the amendment in the backdrop of this flaw would be completely against the provisions of law.
26. In the facts and circumstances, I conclude that the learned Magistrate has granted the amendment without considering the basic legal flaw in the complaint. The legal flaw in the complaint, as stated above, is not a curable infirmity or defect. This defect cannot be allowed to be cured or rectified by granting the amendment. The grant of amendment would relate back to the date of dishonour of the cheque. Notice was not issued in this case to the partnership firm. The partnership firm has not been arrayed as an accused. Even in the amendment application, no prayer was made to add the partnership firm as an accused. In the facts and circumstances, I am of the view that the learned Magistrate was not right in granting the amendment. Therefore, the order passed by the learned Magistrate is required to be quashed and set aside. Harikisan Vithaldasji Chandak And 3 ... vs Syed Mazaruddin Syed Shabuddin (D) Thr.
The court had no jurisdiction to allow the amendment of the complaint petition at a later stage. Therefore, the High court was not correct in taking the aforementioned view in the facts and circumstances of the present case. Subodh S. Salaskar vs Jayprakash M. Shah & Anr 2008 (13) SCC 689
Info!
"Please note that while every effort has been made to provide accurate case references, there may be some unintentional errors. We encourage users to verify the information from official sources for complete accuracy."
