M/S A.S. Polymers Pvt. Ltd. Thr. ... vs M/S Sun Plastics Thr. Its ...
2022 Latest Caselaw 7896 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.

             CRIMINAL WRIT PETITION NO. 377/2022


         M/s. A. S. Polymers Pvt. Ltd.,
         having its registered office at Meghdoot
         Heights Plot No. 172, Flat No. 301, 4th
         Floor, SA Road, Shraddhanand Peth,
         Nagpur - 440022 through its Director
         Shri Surendra Sharma.

                                                  ... PETITIONER
                                            (Original Complainant)

                              VERSUS

         M/s. Sun Plastics, having its
         office at 38, Goyal Market,
         Siyaganj, Ware House Road,
         Indore - 452001 through its
         proprietor, Mr. Prakash S/o
         Mithulal Goyal
         also at,
         M/s. Sun Plastics 12 Dumper
         Godown Gram Pigdambar,
         Indore - 453331.
                                                    ... RESPONDENT
                                                     (Original Accused)

_____________________________________________________________
       Mr. S. S. Dewani, Advocate with S. D. Dewani, Advocate for
       petitioner.
       Mr. Anmol S. Gupta, Advocate h/f Mr. Pawan Jain, Advocate
       for respondent.
______________________________________________________________
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                    CORAM                     : VINAY JOSHI, J.
                    RESERVED ON               : 10.08.2022
                    DATE OF JUDGMENT          : 12.08.2022.

JUDGMENT :

RULE. Rule is made returnable forthwith.

2. Heard finally by consent of respective parties.

3. A short challenge has been raised to the rejection of the

amendment application by the Trial Court. The petitioner is

complainant in SCC No. 316407/2015 relating to the offence

punishable under Section 138 of the Negotiable Instruments Act

('N.I. Act'). The petitioner sought amendment into the cause title of the

complaint. Precisely, the complaint is filed by M/s. A. S. Polymers

Private Ltd. Co. through its Manager Mr. Surendra Sharma. It is the

petitioner's contention that Mr. Surendra Sharma is a Director and thus,

a typographical error occurred by mentioning him as a "Manager"

instead of "Director". To that extent, the petitioner sought amendment

in the complaint, however it was rejected.

4. The learned counsel appearing for the petitioner would

submit that the proposed amendment was purely a typographical

curable defect and therefore, the Trial Court ought to have allowed the

amendment. He would submit that throughout the petitioner came

with a case that he is a Director of Private Limited Company. It is

submitted that the petitioner and his son who is another Director, has

examined in the complaint. However, the respondent/accused has not

challenged that petitioner is a Director of the Company. In short, it is

the submission that no prejudice would be caused to the respondent, if

such amendment has been carried out. The petitioner has also filed

supporting documents in the nature of certificate of incorporation and

a copy of resolution to indicate that he is a Director of said Company.

5. The other side resisted this application by contending that

at the fag end of the Trial, the amendment cannot be sought. In

support of said contention, reliance is placed on certain decisions.

Moreover, it is contended that the belated amendment would cause

prejudice to the rights of the respondent/accused.

6. There is no dispute that a complaint is filed by the Private

Limited Company through Mr. Surendra Sharma who has been stated

as a Manager. The petitioner has produced copy of certificate of

incorporation along with copy of resolution showing that he is one of

the Director of the Company. Minutes of the meeting of the Board of

Directors has been produced to support said contention. It reveals that

the petitioner and his son has been examined, however the other side

has not challenged that they are Directors of the Company. The learned

counsel appearing for the petitioner by placing reliance on the decision

of this Court in case of Dharmadas Bhiva Jadhav Vs. Arun Bhiva Jadhav

and another, 2021(1) AIR Bom.R (Cri) 684, would submit that

amendment in criminal complaint is permissible. He has also relied on

the decision of the Supreme Court in case of Varun Pahwa Vs. Renu

Chaudhary, (2019) 15 SCC 628, wherein it is ruled that amendment

rectifying procedural mistake in the cause title of suit/memo is

permissible.

7. It is evident that the petitioner has come up with a case that

he is a Director of Private Limited Company. The petitioner led

evidence, wherein he never posed himself as a Manager. The

respondent/accused has cross-examined the petitioner, however, there

is no defence that he is not a Director of Company. Likewise, the

petitioner has examined his son as another Director, however, it is not

denied in cross-examined that the petitioner is a Director of the

Company. It is evident that what is sought to be corrected is the

nomenclature of petitioner which cannot be said to be intentional act

on his part. The petitioner was nothing to gain by making incorrect

nomenclature. Moreover, the respondent/accused has not challenged

that the petitioner is not the Director of the Private Limited Company.

8. The learned counsel appearing for the respondent relied on

the decision of the Supreme Court in case of A. C. Narayanan Vs. State

of Maharashtra and another, 2015(2) M.P.L.C. 6 (S.C.), wherein the

issue about leading evidence through power of attorney was for

consideration which has no relevance to the facts of this case. Then the

respondent relied on the another decision of the Supreme Court in case

of Subodh S. Salaskar Vs. Jayprakash M. Shah and another, 2008 SAR

(Criminal) 745, wherein my attention has been invited to para 30 of

the judgment. The Supreme Court has observed that the Court has no

jurisdiction to allow the amendment of the complaint at a later stage.

However, the facts of the said case are quite distinct. The said

complaint under Section 138 of the N.I. Act was barred by limitation

and at belated stage, the complainant tried to add Section 420 of the

Indian Penal Code and in those fact, the amendment was rejected.

That being the distinct position, it would not assist the respondent in

any manner. Finally, the respondent relied on the decision of the

Allahabad High Court in case of Fragrant Leasing and Finance

Company Ltd. Vs. Jagdish Kathuria and another, 2008(I) C.L.D.C. 59 .

The said decision relates to the competency of the petitioner without

filing authority letter. Thus, being distinct fact, it is of no assistance.

9. The Supreme Court in case of S. R. Sukumar Vs. S. Sunaad

Raghuram (2015) ALL MR (Cri.) 2898, ruled that amendment seeking

curable infirmities in complaint can be allowed. It is apprent that

inadvertent mistake has been occurred since the petitioner has throught

out came with a case that he is a Director of Company and therefore,

there is no difficulty in allowing the amendment. The Trial Court erred

in appreciating the facts as well as position of law.

10. In view of above petition is allowed. Impugned orders

dated 30.03.2022 and 08.06.2022 are hereby quashed and set aside.

The amendment to the extent of correcting cause title sought by the

petitioner is allowed.

11. Petition stands disposed of in above terms.

(VINAY JOSHI, J.) Gohane

Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.08.12 15:49:47 +0530