IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5398 OF 2015 BETWEEN:
SRI. LAKSHMIPRASAD REDDY AGED ABOUT 42 YEARS, S/O JAYARAMA REDDY OFFICE AT NO.606, SREE COMPLEX, 2ND FLOOR, NEAR RICE MEMORIAL CHURCH, AVENUE ROAD, BANGALORE-560 002 (BY SRI: NATARAJA BALLAL, ADVOCATE) ... PETITIONER AND:
YADALAM CHITS PVT. LTD NO.81, 2ND FLOOR, L.T.COMPLEX, R.V.ROAD, BASAVANAGUDI, BANGALORE-560 004 REP. BY ITS FOREMAN/MANAGER/AUTHORIZED SIGNATORY SRI SRINATH.Y AGED ABOUT 65 YEARS S/O Y.RAMANATHAIAH ... RESPONDENT (BY SRI: K S HARISH, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO (A)QUASH THE ORDER DATED 4.8.2015 PASSED BY THE XXII ACMM, BANGALORE, IN C.C.NO.32152/2014 ON THE APPLICATION DATED 29.7.2015 FILED BY THE PETR FOR AMENDMENT. B) ALLOW THE APPLICATION DATED 29.7.2015 FOR AMENDENT FILED BY THE PETR.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner herein initiated proceedings under Section 138 of N.I. Act. In the complaint, the respondent/accused was described as under:-
“Sri. Srinath. Y, Son of Y. Ramanathaiah Aged about 65 years Foreman/Manager/Authorised Signatory Yadalam Chits Pvt Ltd., No.81, 2nd Floor L.T. Complex, RV Road Basavanagudi Bengaluru-560 004.
And also at Sri Srinath . Y, Son of Y. Ramanathaiah No.1972, South End D Cross Jayanagar, 9th Block Bengaluru-560011.
2. When the matter was at the stage of cross-examination of the accused, the petitioner/complainant moved an application to amend the address of the accused in the cause-title as under:-
AMENDMENT SOUGHT FOR To delete the words in the first address. “Sri. Srinath . Y Son of Y. Ramanthaiah Aged about 65 years Foreman/Manager/Authorized Signatory, And to insert after the word “Bengaluru-560004” as “Represented by its Foreman/ Manager/Authorised Signatory, Sri. Srinath. Y”, To delete the words “And also at”
To insert the words in the second address after the words son of Y. Ramanathaiah as “Foreman/Manager/Authorised Signatory”
3. In the application, it was stated that the complainant had invested the amount in the “accused chit fund” and the complainant had paid the installments in respect of two chits and the accused had issued receipts for having received the instalments. At the time of filing the complaint, the complainant had made “both the Yadalam Chits Pvt Ltd., and its foremen/authorized signatory Y. Srinath,” as party to the proceedings,” “but due to typographical error, the complainant has mentioned the name of the representative of Yadalam Chits Pvt Ltd., name is Y. Srinath in the top of the accused first address instead of bottom of the address i.e., after “Bengaluru-
560 004” and the complainant have mentioned Y. Srinath as party in the second address, due to the error crept by oversight not mentioned after his name as foremen/authorized signatory, this is only a curable defect in the compliant, hence, this application for amendment.”
4. This application has been dismissed by the learned Magistrate by the impugned order dated 04.08.2015 mainly on the ground that the application was filed at a belated stage. Petitioner is aggrieved by the said order.
5. Learned counsel for the petitioner submits that necessary averments were made in the complaint to the effect that the complainant had transactions with “Yadalam Chits Pvt Ltd., and its Foremen/authorized signatory.” Learned counsel has drawn my attention to para 6 of the complaint, wherein it is stated that “………….The complainant had invested his hard earned money with the accused Yadalam Chit Pvt Ltd., as his savings. But the accused had not made repayment on several requests of the complainant ‘‘ 6. It is the submission of the learned counsel that the petitioner does not intend to introduce any new averment in the complaint. On the other hand, the petitioner intends to bring the cause-title in conformity with the averments made in the complaint and as such the trial court ought to have allowed the application. He has placed reliance on a decision in S.R. SUKUMAR v. S. SUNAAD RAGHURAM reported in (2015) 9 SCC 609, in para 12, whereof, it is held as under:-
“Insofar as merits of the contention regarding allowing of amendment application, it is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints.”
7. In other words, the submission of the learned counsel is that by the proposed application, the petitioner has intended only to cure the infirmities found in the description of the accused and therefore, the trial court ought to have allowed the amendment.
8. Learned counsel appearing for the respondent however has opposed the submissions and would submit that going by the averments made in the complaint, the accused was sought to be prosecuted in his individual capacity. All the averments are to the effect that the cheque in question was issued by the accused in his individual capacity. The company was also not made a party. The trial court has taken cognizance of the offence only insofar as the respondent is concerned and not against the company. Therefore on account of delay in moving the application, the complainant is not entitled to implead the company beyond the period of limitation.
9. In support of his argument, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in the case of N. Harihara Krishnan vs. J. Thomas in Crl.A.No.1534/2017 dated 30.08.2017.
Considered the submissions and perused the records.
10. There are specific averments in the complaint that the complainant had transactions with Yadalam Chits Pvt. Ltd., The cheque in question is issued by the company, signed by its authorized signatory. The respondent does not dispute the fact that he is the Authorised Signatory of the said company as described in the cause-title. As such, the complaint against the respondent is maintainable under Section 138 of N.I. Act. The question for consideration is “Whether at this stage, the company could be substituted in place of the respondent?.”
11. In this regard, a useful reference could be made to the observations made by the Hon’ble Supreme Court with regard to the difference in taking cognizance of the offences under General Law and the cognizance of the offences under the provisions of N.I. Act. In the case of N. Harihara Krishnan vs. J. Thomas in Crl.A.No.1534/2017 dated 30.08.2017, at para 24, the Hon’ble Supreme Court has held as under:-
24. “………………in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the CrPC should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint.”
12. In the instant case, undisputedly, the trial court has taken cognizance of the offence and has proceeded with the trial against the accused. If the company is to be substituted in place of the respondent at this juncture, it would be a de novo complaint, which, the learned Magistrate cannot proceed without taking fresh cognizance of the offence and the offender which in effect, would nullify the entire proceedings initiated against the respondent. The petitioner does not intend to delete the respondent from the array of parties, rather, he wants to bring in a new entity, which in my view, in the light of the above proposition cannot be permitted.
Hence, I do not find any justifiable reason to interfere with the impugned order.
Accordingly, the petition is dismissed. All the contentions urged by the parties, even on the points considered in this order are left open for consideration at the stage of final hearing.
*mn/-
Sd/- JUDGE