* HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

+ Criminal Revision Case No.928 of 2019

% Dated 27-01-2020

Between:

# M/s. Bangi Linganna rep. by its prop: U.B. Mallikarjuna,

Yemmiganur.

….. Petitioner

and

$ State of A.P. rep. by the Public Prosecutor & ors.

..Respondents

! Counsel for the petitioner : Sri Butta Vijaya Bhaskar

^ Counsel for respondent No.1 : Addl. Public Prosecutor

Counsel for respondent Nos.2&3 : Sri Surendra Desai

<GIST:

> HEAD NOTE:

? Cases referred

1. (2015) 9 SCC 609

2. (1987) 3 SCC 684

3. (2016) 11 SCC 774 = AIR 2016 SC 2519 =2016 (2) ALD (Cri)

21

4. 2014 LawSuit(Raj) 1166 = 2014 (3) Crimes(HC) 515 = 2015

(3) BankCas 12

5. 2018 LawSuit(Raj)1563 = 2019(2) CriCC 547 = 2019(2)

CivCC 541

2

CMR,J.

Crl.R.C.No.928 of 2019

IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

Criminal Revision Case No.928 of 2019

Between:

M/s. Bangi Linganna rep. by its prop: U.B. Mallikarjuna,

Yemmiganur.

….. Petitioner

and

State of A.P. rep. by the Public Prosecutor & ors.

..Respondents

JUDGMENT PRONOUNCED ON: 27-01-2020

HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

---

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

-Yes-

3. Whether His Lordship wish to see the fair

copy of the Judgment?

-Yes-

JUSTICE CHEEKATI MANAVENDRANATH ROY

3

CMR,J.

Crl.R.C.No.928 of 2019

HON’BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

Criminal Revision Case No.928 of 2019

ORDER:

The petitioner challenges in this revision, the order

dated 02.08.2019 passed in Crl.M.P.No.1226 of 2019 in

C.C.No.326 of 2017 on the file of the Judicial Magistrate of

First Class, Yemmiganur, Kurnool District, whereby the

petition filed by him seeking permission to amend the cause-

title of the complaint to correct the name of the accused as

“S.G. Ampamma” instead of “S.G.Annapurnamma” was

dismissed.

Facts of the revision case are rather jejune and may be

stated as follows:

The petitioner is the complainant in C.C.No.326 of

2017 on the file of the Judicial Magistrate of First Class,

Yemmiganur. He has filed the said complaint against

respondent Nos.2 and 3 herein, who are accused therein,

under Section 138 of the Negotiable Instruments Act, 1881,

(for short, “the N.I. Act”) on the ground that the cheque that

was issued towards discharge of legally enforceable liability

was dishonoured. The 1

st accused in the said case is

“Vamsha Traders represented by its Proprietor. The 2

nd

accused is the proprietor of the said Vamsha Traders. The

2

nd accused is shown as representing the 1

st accused

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CMR,J.

Crl.R.C.No.928 of 2019

Vamsha Traders. Her name was shown as “S.G.

Annapurnamma” in the cause-title of the complaint.

It is the case of the complainant that in fact the correct

name of the 2

nd accused is “S.G. Ampamma”. But,

inadvertently by mistake, that her name was typed as “S.G.

Annapurnamma” in the cause-title. When notice dated

12.07.2017 was issued to her before filing the complaint, she

received the same and acknowledged the receipt of the said

notice and she got issued a reply notice dated 17.07.2017,

wherein her name is mentioned as “S.G. Ampamma”. She

has also signed on the cheque as “Ampamma”. In the reply

notice also she has admitted that she is the proprietor of the

1

st accused-Vamsha Traders. However, she pleaded that she

has closed that business on 21.07.2014. Now, taking

advantage of the said spelling mistake in mentioning the

name of the 2

nd accused as “S.G. Annapurnamma” that she

is trying to wriggle out from her liability in the case.

Therefore, the complainant has filed a petition under Order

VI Rule 17 CPC seeking permission of the Court to amend

the cause-title in the complaint to correct the name of the 2

nd

accused, who is also representing the 1

st accused, as “S.G.

Ampamma”.

The said petition was opposed by the accused in the

said case mainly on the ground that there is no provision

either in the Criminal Procedure Code or in the N.I. Act to

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CMR,J.

Crl.R.C.No.928 of 2019

seek amendment of a complaint filed under Section 138 of

the N.I. Act. So, the complainant cannot invoke Order VI

Rule 17 CPC, which pertains to amend the pleadings in a

Suit, to amend the complaint in a criminal case. Accepting

the said contention of the accused that there is no provision

in the Cr.P.C. or in the N.I. Act which enables the

complainant to amend the complaint in a criminal case and

also on the ground that Order VI Rule 17 CPC is applicable

only to amend the pleadings, which are plaint and written

statement, the learned Magistrate dismissed the said petition

as not maintainable by the impugned order.

Aggrieved thereby, the complainant has preferred the

present Criminal Revision Case assailing the legality and

validity of the impugned order.

Heard learned counsel for the petitioner and learned

Additional Public Prosecutor for the 1

st respondent-State.

Despite service of notice, none appeared for respondent

Nos.2 and 3-accused.

The seminal question that arises for determination in

this revision case is, whether a petition to amend a

complaint filed in a criminal case is maintainable or not in

the absence of any provision to that effect in the Cr.P.C. or in

the N.I.Act.

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CMR,J.

Crl.R.C.No.928 of 2019

As already noticed supra while narrating the facts of

the case, the complainant has filed a complaint under

Section 138 of the N.I. Act against Vamsha Traders

represented by its proprietor showing it as 1

st accused and

against the 2

nd accused therein, who is the proprietor of the

1

st accused, who is named as “Smt.S.G. Annapurnamma” on

the ground that the cheque that was issued by the 2

nd

accused as proprietor of the 1

st accused towards discharge of

legally enforceable liability was dishonoured. During the

pendency of the said case in the trial Court, it is noticed by

the complainant that the correct name of the 2

nd accused,

who is also representing the 1

st accused, is “S.G. Ampamma”

and not “S.G. Annapurnamma” and it was wrongly

mentioned in the complaint due to spelling mistake that her

name is “S.G. Annapurnamma”. Therefore, he sought

permission of the trial Court for amendment of the name of

the 2

nd accused as “S.G. Ampamma” in the cause-title of the

complaint. As noticed supra, the said petition was dismissed

by the trial Court solely on the ground that there is no

provision in the Cr.P.C. or in the N.I. Act which enables the

parties to amend the complaint in a criminal case. The

learned Magistrate also held that Order VI Rule 17 C.P.C.

applies only to amend the pleadings which are plaint and

written statement and not the complaint relating to a

criminal case.

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CMR,J.

Crl.R.C.No.928 of 2019

Oblivious of the settled legal position in this regard, the

learned Magistrate has, undoubtedly, taken an erroneous

view. The law is now well-settled that eventhough there is no

provision in the Cr.P.C. or in the N.I. Act to amend the

complaint in a criminal case that in appropriate cases when

the Court finds that the amendment is essential to do real

justice to the parties and when the mistake in the complaint

is a bona fide mistake, then the Court can always permit the

parties to amend the complaint suitably. The legal position

in this regard is not res nova and the same has been well-

settled. There are plethora of judicial pronouncements on

the said proposition of law.

The Apex Court in S.R. Sukumar v. S. Sunaad

Raghuram

1 held as follows:

“ 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.”

In U.P. Pollution Control Board v. Modi Distillery

2,

also the Apex Court held that amendment can be permitted

in a criminal case. In the said case, the name of the

company was wrongly mentioned in the complaint. Instead

of “Modi Industries Ltd.” the name of the company was

1

(2015) 9 SCC 609

2

(1987) 3 SCC 684

8

CMR,J.

Crl.R.C.No.928 of 2019

mentioned as “Modi Distillery”. The complainant sought

permission of the Court to amend the complaint to correct

the wrong mentioning of the name of the company. The

Supreme Court held that permission can be accorded to

amend the complaint. As per the ratio laid down in the

same judgment of the Apex Court, a curable legal infirmity

could be cured by means of a formal application for

amendment when no prejudice could be caused to the other

side. Further held that notwithstanding the fact that there is

no enabling provision in the Code to entertain such

amendment, the Court may permit such an amendment to

be made.

Relying on the above two judgments of the Apex Court,

again in Kunapareddy @ Nookala Shanka Balaji v.

Kunapareddy Swarna Kumari

3 the Supreme Court held at

para 18 of the judgment as follows:

“What we are emphasizing is that even in criminal cases

governed by the Code, the Court is not powerless and may allow

amendment in appropriate cases. One of the circumstances

where such an amendment is to be allowed is to avoid the

multiplicity of the proceedings. The argument of the learned

counsel for the appellant, therefore, that there is no power of

amendment has to be negated.”

The Jaipur Bench of the Rajasthan High Court also in

the case of Oswal Finlease Private Limited v. State of

3

(2016) 11 SCC 774 = AIR 2016 SC 2519 =2016 (2) ALD (Cri) 21

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Crl.R.C.No.928 of 2019

Rajasthan

4, held that amendment to correct typographical

error in details of the cheque mentioned in the complaint

and also in the affidavit made, after cross-examination of the

complainant can be allowed and bona fide mistakes can be

corrected by way of amendment.

The Rajasthan High Court in another case in Kanwar

Lal v. National Seeds Process through its Partner Kishore

@ Ganshyam

5 also held that amendment to correct the

name of the party that was wrongly mentioned in the cause-

title can be allowed.

As per the facts of the said case, the actual name of the

accused in the said case is “Kishore”. As he was commonly

called as “Ghanshyam”, he was initially shown as

“Ghanshyam” in the complaint. During the pendency of the

complaint, the complainant realized that the actual name of

the accused is “Kishore” and his alias name is “Ghanshyam”.

Therefore, he sought permission of the Court to amend the

cause-title of the complaint to correct the name of the

accused. The Court found that the wrong mentioning of the

name of the accused in the complaint is due to bona fide

mistake and held that the trial Court should have acted

objectively and should have allowed the complainant to make

the requisite correction in the cause-title of the complaint.

4

2014 LawSuit(Raj) 1166 = 2014 (3) Crimes(HC) 515 = 2015 (3) BankCas 12

5

2018 LawSuit(Raj)1563 = 2019(2) CriCC 547 = 2019(2) CivCC 541

10

CMR,J.

Crl.R.C.No.928 of 2019

Therefore, held that the impugned order of the trial Court ex

facie does not stand to scrutiny and deserves to be set aside.

Thus, from the conspectus of the law laid down in the

above cited judgments of the Apex Court and also the

judgments of the Rajasthan High Court, the legal position is

perspicuous that notwithstanding the fact that there is no

provision in the Cr.P.C. enabling the parties to seek

permission of the Court to amend a complaint in a criminal

case, filed either under Section 138 of the N.I. Act or under

any of the provision of law, when the Court finds that the

mistake is a bona fide mistake and when the amendment

sought is essential for effective adjudication of the

controversy in the lis and to render substantial and real

justice to the parties and when it requires to avoid

multiplicity of proceedings that in all such appropriate cases,

that the Courts can allow the parties to amend the pleadings

to cure the curable infirmities by according necessary

permission to that effect and particularly when no prejudice

is caused to the opposite party by permitting the party to

amend the complaint. Only a formal application is required

to be filed for the said purpose.

Therefore, in view of the law enunciated in the above

judgments, the impugned order of the learned Magistrate is

clearly unsustainable under law. So, it is liable to be set

aside.

11

CMR,J.

Crl.R.C.No.928 of 2019

In the result, the Criminal Revision Case is allowed

setting aside the order dated 02.08.2019 passed in Crl.M.P.

No.1226 of 2019 in C.C.No.326 of 2017 on the file of the

Judicial Magistrate of First Class, Yemmiganur. The petition

filed by the complainant seeking permission to amend the

cause-title of the complaint is allowed permitting him to

correct the name of the 2

nd accused as “S.G. Ampamma” and

carry out necessary amendments in the complaint.

Consequently, miscellaneous applications, pending if

any, shall also stand closed.

________________________________________________

JUSTICE CHEEKATI MANAVENDRANATH ROY

Date:27-01-2020.

Note:

L.R. copy to be marked.

B/O

cs