IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7752/2015 BETWEEN:
Babu Nair, S/o. Mahadevan Nair, Aged about Civil & Electrical Contractor, Jayambay Enterprises, R/o. 598/b, Aradi Guirim, Mapusa, North Goa – 403 507 Goa State. …Petitioner (By Sri. Kashinath J.D., Advocate) AND:
B. Bheemappa, S/o. Bheema Bhovi, Aged about 56 years, PWD Contractor, R/o. Bommanakatte Village, Kallihal Post, Bhadravathi Taluk, Shimoga District – 577 433 Karnataka State. ...Respondent (By Sri. S.V. Prakash, Advocate - ABSENT.) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 20.10.2015 on application under Sec. 311 of Cr.P.C. by the Hon’ble I Additional Judge (Jr.Dn.) and JMFC at Bhadravathi, on the complaint of respondent dated 31.07.2012 for the offence punishable under section 138 of N.I.Act and pending on the file of the I Addl. Civil Judge (Jr.Dn.) and JMFC at Bhadravathi.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner. Counsel for the respondent is absent.
2. The petitioner has challenged the order dated 20.10.2015 passed by the learned Magistrate in C.C.No. 3914/2012 whereby, the application filed by the respondent – complainant under Section 311 of Cr.P.C. is allowed and the complainant is permitted to amend the complaint as prayed for in the application.
3. The respondent herein filed a private complaint under Section 138 of Negotiable Instruments Act. After recording his sworn statement, summons were issued to the petitioner. After framing charge, the evidence of the complainant was recorded and after examining the accused under Section 313 of Cr.P.C., matter was set down for judgment. At that stage, complainant moved an application under Section 311 of Cr.P.C. The application reads as under:
“APPLICATION UNDER SEC. 311 Cr.P.C. ON BEHALF OF THE COMPLAINANT :
The complainant has filed the above case against the accused. The above case has been posted for judgment. Now the complainant intending to amend or correct the typographical error which was crept in the complaint, which is not intentional one but bonafide. If the complainant has not been allowed to reopen the above case from the stage of judgment, he will be put to great hardship and inconvenience. The above said mistake which was found in the complaint is not improving the case. So that the complainant prays this Hon’ble Court to reopen and allow him to carry out necessary typographical error, by allowing this application in the ends of justice.”
4. In the above application, the respondent – complainant did not specify the amendment sought for by him. Except stating that the complainant intended to correct a typographical error which has crept in the complaint, complainant has not disclosed as to the nature of the amendment proposed to be effected in the complaint.
Curiously, in the impugned order, the learned Magistrate has observed that the petitioner intended to rectify the date of the service of notice. When the complainant himself has not stated as to the proposed amendment, the learned Magistrate could not have observed that the complainant intended to correct the date of the service of legal notice. Moreover the records disclose that the complainant has given his evidence before Court and he has maintained all throughout that the legal notice was issued on the date mentioned in the complaint as well as in his sworn statement. Therefore, there was absolutely no justification for the learned Magistrate to allow the application.
5. Section 311 of Cr.P.C. enables any Court, at any stage of inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re- examine any person already examined, but the section does not empower the criminal Court to permit the complainant to amend the petition. The impugned order is arbitrary, illegal and without authority of law.
For the above reasons, the petition is allowed. The impugned order dated 20.10.2015 on the interlocutory application filed by the respondent – complainant under Section 311 of Cr.P.C. in C.C.No.3914/2012 is quashed.
Sd/- JUDGE Mgn/-