M/S. Bijay Auto Services, vs The State Of Andhra Pradesh,
2023 Latest Caselaw 5235 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

            CRIMINAL PETITION No.6894 OF 2019

ORDER:

This Criminal Petition is filed under Section 482 of the

Code of Criminal Procedure, 1973 (Cr.P.C.), praying to quash the

order dated 12th July, 2019 in C.C.No.153 of 2016 on the file of

the Special Magistrate Court-VI, Visakhapatnam District, and,

consequently, to allow the amendment application as prayed for

in Crl.M.P.No.2498 of 2019 in C.C.No.153 of 2016 on the file of

the Special Magistrate Court-VI, Visakhapatnam District.

2. The petitioner herein is the complainant, and respondents

2 to 5 are the accused Nos.1 to 4 in the aforesaid C.C. No. 153 of

2016. The parties are hereinafter referred to as the „complainant‟

and the „accused‟. The complainant has filed a complaint under

Section 190 Cr.P.C. read with Section 200 Cr.P.C., vide

C.C.No.153 of 2016, on the file of the Special Magistrate Court-

VI, Visakhapatnam, to take cognizance of the offence under

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter

called „the NI Act‟, for short) against the accused, who are

respondents 2 to 5 herein, and to punish the accused.

3. While the matter stood thus the complainant has filed

Crl.M.P.No.2498 of 2019 under Section 143 of the NI Act to

amend the complaint in the said calendar case. Initially, it is

asserted in the complaint that the notices were sent to the

accused, and the accused has not claimed the said notices,

hence it is deemed service of notices.

Now the complainant wanted to amend the complaint,

asserting that he has sent notices to the accused, and the

notices were served on the first accused, and the postal

acknowledgment dated 21-05-2014 was not filed due to

oversight, as it was misplaced in the office of the advocate and as

it is mixed with notices of other cases.

4. It is also asserted in the petition filed for amendment of the

complaint that earlier the complainant filed Crl.M.P.No.233 of

2018 under Section 311 of Cr.P.C. to receive the said postal

acknowledgment dated 21-05-2014, which was received by the

1st accused, so as to enable the complainant to mark the same

as a document; otherwise, it is fatal to the case of the

complainant herein. The said petition was dismissed by the

learned Magistrate.

5. The accused have denied all the averments made in the

petition filed in support of the amendment petition and would

contend that the complainant filed an evidence affidavit on 28th

October, 2016 and subsequently filed an additional chief

affidavit on 22-12-2016; he was cross-examined, and the

complainant has not brought the same to the notice of the Court

below. In order to cover the latches, the complainant has filed

the present petition, wantonly to drag on the proceedings. They

also contend that earlier the complainant filed a petition in

Crl.M.P.No.233 of 2018 to receive the postal acknowledgment

served on the accused, and the same was dismissed, and it has

attained finality. Hence, it is prayed in the counter to dismiss the

petition filed by the complainant for amendment of the

complaint.

6. After considering the petition and the counter averments,

the learned Magistrate has dismissed the Crl.M.P.No.2498 of

2019 by an order dated 12-07-2019, holding that the

amendment is not a curable defect and it likely causes prejudice

to the accused. Inter alia, the Court observed that the

complainant was examined long ago on 17-11-2017 and P.W.2

was also examined, and the defence counsel cross-examined on

the return of notices. The amendment petition can be allowed by

the Court, if no prejudice is caused to the other side, relying on

the judgment of the Apex Court in S.R.Sukumar v. S.Sunaad

Raghuram1.

7. Now the said order is assailed or agitated in the present

criminal petition on the ground that the amendment of the

complaint does not cause any prejudice to the accused, it is a

curable defect, and the learned magistrate has wrongly relied on

or interpreted the judgment in S.R. Sukumar's case (1 supra). As

the service of notice is a question of fact and a rebuttable

presumption, no prejudice will be caused to the accused by

merely allowing the amendment, as it can be rebutted by the

accused. However, the drawer is at liberty to rebut this

presumption either by adducing evidence or on the basis of

evidence produced by the complainant. Hence, it is prayed to

allow the said Crl.M.P. by setting aside the order dated

12-07-2019, in Crl.M.P.No.2498 of 2019.

8. Repelling the arguments and contents raised by the

complainant, the learned counsel for the accused would support

the order of the learned magistrate and would contend that the

(2015) 9 SCC 609

order of the learned magistrate is in accordance with the law and

no interference is required, and, inter alia, he would contend

that Crl.M.P.No.233 of 2018 was filed by the complainant to

receive the said postal acknowledgment dated 21-05-2014, and

the said petition was dismissed, it was not assailed, and, as

such, it has attained finality, and if the same amendment is

allowed after the cross-examination of P.Ws.1 and 2, it causes

prejudice to the accused. Hence, it is prayed to dismiss the

present criminal petition, as the impugned order lacks merit.

9. Now the point for consideration is whether the amendment

sought in the complaint is permissible in criminal cases and

whether the defect is a curable defect or not.

10. Either in the NI Act or in the Code of Criminal Procedure, it

does not envisage the amendment of the complaint. In the

absence of such a procedure, the Court cannot exercise such

jurisdiction. The Court can exercise such jurisdiction only to

amend the complaint where such a mistake is a typographical or

clerical one that does not cause prejudice to the other side.

11. Now the complainant is seeking amendment of the

complaint with the following assertion: "the notices were sent to

the accused and the first accused received the notice, and the

acknowledgment dated 21-05-2014 was misplaced in the office

of the counsel" in place of the averment made in the complaint

"that notices were sent to the accused and they were not

claimed, and hence it is deemed service". There is a significant

difference between notice unclaimed and notice served on the

first accused.

12. As rightly contested by the accused, there is no provision

for amendment in the Criminal Procedure Code. The Supreme

Court in S.R.Sukumar's case (1 supra) has categorically held that

there is no specific provision in the Criminal Procedure Code

either to amend the complaint or if the amendment relates to

simple infirmity which is curable by means of a formal

amendment and by allowing such amendment, no prejudice

could be caused to the other side, notwithstanding the fact that

there is no enabling provision in the Criminal Procedure Code for

entertaining such amendment, the Court may permit such an

amendment to be made and if the amendment sought to be

made in the complaint does not relate either to a curable

infirmity or the same cannot be corrected by a formal

amendment or if there is likelihood of prejudice to the other side.

13. Section 138 of the NI Act is a penal provision where any

cheque drawn by a person on an account maintained by him

with a banker for payment of any amount of money to another

person from out of that account for the discharge, in whole or in

part, of any different or other liability is dishonoured or returned

by the bank unpaid due to insufficient funds. The section is

subject to the following provisions:

"Provided that nothing contained in this section shall apply unless--

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder, in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such a cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

14. Under clause (b) of Section 138 of the NI Act, the payee or

the holder, in due course of the cheque, as the case may be,

shall make a demand for payment of the said amount by giving a

notice in writing to the drawer of the cheque within thirty days of

the receipt of information by him from the bank regarding the

return of the cheque as unpaid. The section indicates that the

notice has to be issued within thirty days to the drawer of the

cheque, and it is a mandatory provision. The purpose of the

notice is to give the drawer of the cheque the opportunity to

make a payment.

15. As can be seen from Section 27 of the General Clauses Act,

1897, and Section 114 of the Evidence Act, 1872, once a notice

is sent by registered post to the addressee or to the drawer of the

cheque, the service of notice is deemed to have been completed

within the requirements under Section 138(b) of the NI Act. In

this context, it may refer to an earlier judgment of the Apex

Court in M/s. Dalmia Cement (Bharat) Ltd. v. M/s. Galaxy

Traders and Agencies Ltd.2, in which it was held that the

presumption is rebuttable.

AIR 2001 SC 676

16. But, in the subsequent decision in M/s. Harman

Electronics (P) Ltd. and another v. M/s. National Panasonic India

Ltd.3, it was held that the presumption in support of service of

notice depends upon the facts and circumstances of each case.

17. In Jagdish Singh v. Natthu Singh4, State of M.P. v. Hiralal5,

V.Rajkumar v. P. Subrama Naidu and another6, the Apex Court

held that when a notice is sent by registered post and is

returned with the postal endorsement "refused" or "not available

in the house" or "house locked" or "shop closed" or "addressee

not in station", due service has to be presumed.

18. In Shakti Tavel and Tours v. State of Bihar and another 7,

the Apex Court held that the complaint is not maintainable if it

is not asserted in the complaint about the service of notice.

19. As seen from the record, it appears that acknowledgment

was received on 21-05-2014; the complaint was registered in the

year 2016; and the amendment petition was filed in the year

2019 after a gap of three years. There is no assertion in the

petition filed seeking amendment when the acknowledgment was

traced in the office of the counsel, in a strict sense; Order 6 Rule

AIR 2009 SC 1168

(1992) 1 SCC 647

(1996) 7 SCC 523

(2004) 8 SCC 774

(2002) 9 SCC 415

17 C.P.C. does not apply to criminal cases; if it is tested with the

proviso of Order 6 Rule 17 C.P.C., no amendment can be sought

by the complainant after commencement of trial.

20. The complainant herein filed Crl.M.P.No.233 of 2018 under

Section 311 Cr.P.C. to receive the postal acknowledgement as an

additional document, and the same was dismissed by the

learned magistrate. The said dismissal order was not assailed

and has attained finality, and now the complainant cannot

agitate for an amendment of the complaint. Now the present

petition is filed for an amendment to the complaint, albeit the

provision is different, the purpose is the same, if the petition is

allowed for an amendment of the complaint, it causes prejudice

to the accused herein, it is not a curable defect, and it is not a

simple infirmity as it is not a typographical or clerical mistake to

allow the amendment. If the amendment petition is allowed, it

changes the nature of the pleading of the complaint and,

undoubtedly, causes prejudice to the accused.

21. Resultantly, the criminal petition fails, and the impugned

order of the learned Magistrate is sustainable in dismissing the

application filed for amendment, and this Court does not find

any infirmity or illegality in the impugned order, as the said

amendment petition is filed after three years of the filing of the

complaint at the verge of the trial.

22. Accordingly, the criminal petition is dismissed. As a sequel,

interlocutory applications, pending if any in this case, shall

stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 01.11.2023 siva

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

CRIMINAL PETITION No.6894 OF 2019

Date: 01.11.2023

siva