IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4455 of 2003()
1. WILSON,
... Petitioner
2. M/S. PARIS ELECTRICALS TRADERS,
Vs
1. STATE OF KERALA,
... Respondent
2. M/S. JOS ELECTRICALS (AGENCIES),
For Petitioner :RAMAKUMAR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :26/03/2008
O R D E R
A.K.BASHEER, J.
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Crl.M.C.No.4455, 4490, 4558 & 4565 OF 2003
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Dated this the 26th day of March 2008
ORDER
These four Criminal Miscellaneous Cases filed under
Section 482 of the Code of Criminal Procedure are being
disposed of by this common order, since the parties and the issue
involved in them are common.
2. The common petitioners in these cases are being
prosecuted for the offence punishable under Section 138 of the
Negotiable Instruments Act before the Chief Judicial Magistrate’s
Court, Ernakulam in four Calender Cases namely, C.C.2471/98,
2469/98, 2342/98 and 2345/98.
3. Petitioners are a partnership firm and its managing
partner. They seek to quash the proceedings pending against
them before the lower court primarily on the ground that the
learned Magistrate had committed serious illegality and
irregularity by allowing a petition filed on behalf of the
complainant to substitute the name of the managing partner of
the firm in the course of the proceedings.
Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003
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4. Respondent No.1 had filed the four complaints against
the firm and its Managing Partner alleging that the four cheques
issued by the managing partner on behalf of the firm in discharge
of a legally enforceable debt were dishonoured when they were
presented for encashment. According to the complainant, the
amount covered under the four cheques represented the value of
electrical goods purchased by the firm from the complainant.
The cheques were dishonoured due to insufficiency of funds in
the account of the firm/accused. In spite of service of the
statutory demand notice on the accused, the liability was not
discharged.
5. It is beyond controversy that the complainant had
arraigned Mr.Selvam, the brother of petitioner No.1 as the
Managing partner/first accused in a representative capacity in
the complaint. Mr.Selvam was also implicated as accused No.2
in his capacity as the managing partner of the firm. It appears
that in the course of the proceedings an application was filed on
behalf of the complainant “seeking permission of the court to
Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003
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correct the name of the accused”. A copy of the said application
is available on record as Annexure B. In the said application filed
by the learned counsel for the complainant, it was averred that
the name of the managing partner was shown as Selvam in the
complaint due to “an inadvertent typographical mistake”
committed by his clerk. It was further averred that the managing
partner of the firm was not Mr.Selvam but Mr.Wilson, petitioner
No.1 herein. The said mistake was noticed only when the court
had directed the complainant to furnish the correct address of
the accused, as the summons issued to the accused had been
returned without service; the learned Magistrate had allowed
the prayer. Resultantly, petitioner No.1 was arraigned as
accused in his capacity as the Managing Partner of the firm.
6. It is contended by Sri.Ram Kumar, learned Senior
counsel for the petitioner that the learned Magistrate had no
inherent power or jurisdiction to correct the name of the accused
in the course of the proceedings and that too without issuing
notice on the application submitted on behalf of the complainant.
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It is further contended that the application filed by the learned
counsel on behalf of the complainant was by itself incompetent.
Since there is no provision in the Code of Criminal Procedure to
substitute one person with another as an accused in a complaint,
the order of the learned Magistrate is wholly without jurisdiction,
especially because a criminal court is not vested with any
inherent power.
7. At the very outset it may be noticed that Sri.Wilson,
petitioner No.1 does not have a case that he is not the managing
partner of the firm. Not only that, he has described himself as
managing partner in the petitions filed by him before this court.
He had signed the vakalath before this court as well as the trial
court describing him as managing partner under the seal of the
firm. I have also perused the trial court records. It is seen from
the cheque that it was signed by the managing partner. The
signature in the cheque and that of petitioner No.1 in the
vakalath filed before this court as well as before the trial court is
exactly similar and identical to the naked eye. As mentioned
Crl.M.C.Nos.4455, 4490, 4558 & 4565 OF 2003
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earlier, petitioner does not have a case that he was not the
managing partner of the firm at the relevant point of time or that
he had not signed the cheque. His only grievance is that the
complainant having initially implicated his brother Selvam as the
managing partner in the four complaints, it was not open to him
to delete the name of Mr.Selvam from the party array and to
implead petitioner No.1 at a later stage. This according to the
petitioner was without jurisdiction. I am unable to agree.
8. Having regard to the entire facts and circumstances,
especially on perusal of the trial court records, I have no
hesitation to repel the above contention raised by the petitioners.
In this context, it may also be noticed that the complainant had
addressed the statutory demand notice to the Managing Partner
of the firm without mentioning any name. The notice was
accepted by the authorised signatory. But while filing the
complaint, the name of Mr.Selvam, the brother of petitioner
No.1, was wrongly shown in the cause title. In the application
filed by the learned counsel for the complainant, it was
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specifically averred that the above inadvertent mistake was
committed by his clerk. In my view, the learned Magistrate was
justified in allowing the prayer for correction.
9. As indicated earlier, petitioner No.1 has not disputed his
status as the Managing Partner of the firm. The signature in the
cheque and that of petitioner No.1 are exactly similar to the
naked eye. Therefore, I am satisfied that the order of the learned
Magistrate cannot be faulted. The correction of the name of the
accused would serve the interest of justice. In Madhavi v.
Thupran (1987 (1) KLT 488) this court had held correcting a
mistake in the name for the purpose of bringing justice was
within the competence of any criminal court. Similarly, in Ninan
v. Rufus Olivero [1994 (1) KLT 984], this court took the view
that the name of the accused in a complaint under Section 138 of
the Negotiable Instruments Act can be corrected, if there was no
dispute with regard to the identity and also if all other statutory
formalities had been complied with.
10. Lastly, learned senior counsel has raised a contention
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that there was no specific averment against petitioner No.1 in
the complaint. He invites my attention to a recent decision of
their Lordships of the Supreme Court in Sabitha Ramamurthy
v. Channabasavaradhya [2006 (4) KLT 1017 (SC)] and in
Saroj Kumar Poddar v. State (Nct of Delhi) and another
[2007 (3) SCC 693].
I do not propose to deal with the above contention at this
stage, since the primary challenge was against the order passed
by the learned Magistrate substituting the name of the accused.
Moreover, no such ground was raised by the petitioners in the
memorandum of Criminal M.C. It is made clear that it will be
open to the petitioners to urge all their contentions before the
trial court at the appropriate stage. Criminal M.Cs. are
dismissed with the above observation.
(A.K.BASHEER, JUDGE)
jes