1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned counsels appearing for the parties.
3. By this petition, the petitioner challenges the order dated
22.03.2024 passed below Exhibit - 59 by the 8th Joint Civil Judge Senior
Division and ACJM, Nagpur in Summary Criminal Case No.7280 of
2019, thereby allowing the application for amendment/correction in the
complaint sought by the respondent - original complainant. The said
order was carried in revision before the learned Additional Sessions
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Judge-11, Nagpur and the same was confirmed. Feeling aggrieved with
Additional Sessions Judge, this petition came to be filed.
4. Heard the learned counsel for the petitioner as well as the
learned counsel for the respondent. Having gone through the material
Housing Society and Shiv Chatrapati Group of Infrastructure. Process
appeared. The complainant examined himself as well as other three
witnesses. Thereafter, an application vide Exhibit - 59 was filed seeking
That, aforesaid agreement and Issar Chitthi dated
09.08.2014 was executed by the accused in the name of
Priya Co-operative Housing Society.
That, the accused had issued aforesaid cheques from the
account of Shiv Chhtrapati Group of Infrastructures.
When complainant demanded cheques of Priya Co-
operative Housing Society, accused told complainant that
he doesn't have amount in Priya Co-operative Housing
Society Account, hence he is giving cheques from Shiv
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Chhtrapati Account and he is also a proprietor of the
same."
5. The learned Trial Court by relying on the judgments of Maan
Agro Centre vs. EID Parry (India) Ltd. and another, 2005 (2) Mh.L.J. 44
and S R Sukumar vs. S Sunaad Raghuram , 2015 LawSuit (SC) 618,
allowed the amendment application of the complainant.
6. Mr. Prajapati, learned counsel appearing for the petitioner
submitted that the application for amendment was filed after the
complainant and three witnesses have been examined and they were put
to the test of cross-examination by the petitioner. According to him,
certain questions were put to the respondent. To counter these questions,
the respondent filed the amendment application which came to be
erroneously allowed by the learned Trial Court. According to him, the
amendment application post cognizance cannot be allowed. He
submitted that the amendment is not only an attempt to fill the lacuna in
the complaint but will also cause serious prejudice to the petitioner as he
has already opened his defence. Therefore, the orders of the learned Trial
Court as well as the learned Additional Sessions Judge are erroneous and
required to be set aside. To buttress his submission, he seeks to rely on
the decision of this Court in the case of Harikisan Vithaldasji Chandak
and Others vs. Syed Mazaruddin Syed Shabuddin (dead through LRs), in
Criminal Application (APL) No.681 of 2013 decided on 28.04.2023.
Cr.WP-864-2024.odt
7. Per contra, Mr. Dahiwale, learned counsel appearing for the
respondent vehemently submitted that while allowing an amendment
application, the test of prejudice is to be considered. According to him,
the petitioner was well aware about the complainant's case. However, the
complaint actually states that the cheque was issued by Shiv Chatrapati
Group of Infrastructure and not Priya Co-operative Housing Society due
to insufficient funds and the petitioner is the proprietor of both the
entities. Moreover, the petitioner himself while cross-examining the
respondent had sought the documents in this regard which are now being
clarified through amendment. Therefore, no prejudice will be caused to
the petitioner. Hence, he sought rejection of the petition.
8. A perusal of the complaint filed by the respondent before the
learned Trial Court reveals that the petitioner is the Secretary of Priya
Co-operative Housing Society and also the Proprietor of Shiv Chatrapati
Group of Infrastructure. By way of amendment, the respondent sought to
bring on record that the petitioner had issued the cheque from the
account of Shiv Chatrapati Group of Infrastructure stating that he did
not have sufficient funds in Priya Co-operative Housing Society. This
was objected to by the petitioner before the learned Trial Court on the
ground that it amounted to filling the lacuna in the complainant's case.
9. Let me state that the issuance of cheque by Shiv Chatrapati
Group of Infrastructure is a matter of record in respect of which the
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complaint was filed by the respondent before the learned Trial Court.
The complaint also depicts that the agreement was entered into with
Priya Co-operative Housing Society. Nothing new has been added except
for the clarification that the accused/petitioner issued the cheque from
the account of Shiv Chatrapati Group of Infrastructure instead of Priya
Co-operative Housing Society. The amendment sought is regarding the
petitioner informing the complainant that since he did not have
sufficient funds in Priya Co-operative Housing Society, he provided a
cheque from Shiv Chatrapati Group of Infrastructure. Thus, by
amending the complaint, the complainant did not introduce a new case
but merely provided clarification that the cheque from Shiv Chatrapati
Group of Infrastructure's account was issued due to insufficient funds in
Priya Co-operative Housing Society.
10. It is also pertinent to mention here that the petitioner posed a
question to the respondent in cross-examination whether he had any
document to show the amounts due towards Shiv Chatrapati Group of
Infrastructure. The respondent replied that since there were insufficient
funds in the account of Priya Co-operative Housing Society, the accused
issued the cheque from the account of Shiv Chatrapati Group of
Infrastructure. Thus, this fact is already clarified by the respondent
during his cross-examination which is exactly what is being brought on
record by way of amendment. It is not the case that new facts are being
Cr.WP-864-2024.odt
incorporated into the complaint. Therefore, no prejudice will be caused
to the petitioner for two reasons; firstly, the petitioner will have the
opportunity to address this amendment through cross-examination if the
complainant enters the witness box again to testify regarding the
amended portion of the complaint. Secondly, it will be a matter of
appreciation of evidence and he will be at liberty to argue during hearing
of the trial to convince the Court that the amendment sought is an
afterthought.
11. No doubt, in the case of Maan Agro Centre (supra), the
amendment was allowed solely on technical grounds and the amendment
was not sought to be incorporated into the body of the complaint. As far
as the case of S R Sukumar (supra) is concerned, no ratio has been laid
down by the Hon'ble Supreme Court that post cognizance stage
amendment cannot be allowed, therefore, I do not find any substance in
the argument of the learned counsel for the petitioner that the learned
Trial Court as well as the learned Additional Sessions Judge wrongly
relied on the case of S R Sukumar (supra).
12. The learned counsel for the petitioner attempted to draw
support for his case from the judgment in the case of Harikisan
Vithaldasji Chandak (supra). According to him, when the legal
representatives of the deceased - complainant tried to incorporate the
ingredients of vicarious liability of accused Nos.1 to 4 therein, which was
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not incorporated earlier, this Court set aside the order of the learned
Magistrate allowing to amend the complaint. Taking help of this
judgment, learned counsel for the petitioner submitted that the
amendment application ought not to have been allowed by the learned
Trial Court. I have gone through the judgment of this Court, wherein
this Court in para 19 of the judgment has set out the principles with
regard to amendments in the complaint, which is reproduced here :
"19. The legal position is, therefore, well settled that the
curable infirmity or defect can be removed by amending the
complaint. The amendment cannot be allowed to change the basic
core, crux and tenor of the complaint. The amendment, which
results in prejudice to the other side, cannot be allowed. In other
words, the amendment sought for to the complaint, if does not
cause prejudice to the other side, the same can be allowed. When
the amendment application pertains to addition of company or firm
as a principal offender, after taking cognizance of the offence
mentioned in the complaint by the Magistrate, by applying the
principle of law that the Criminal Court takes the cognizance of the
offence and not of the offender, cannot be made applicable and
company or firm cannot be added. If the cheque is drawn on the
account of company or firm, then the principal offender is the
company or firm and therefore, in the absence of the company or
firm being arraigned as accused in the complaint, the prosecution
against the Directors or Partners cannot be maintained. It,
therefore, goes without saying that if the company or firm is not a
party to the complaint and the application is made to add the
company or firm as a party to remove such defect, the same cannot
be entertained."
13. Considering the aforementioned legal position, wherein it has
been held that amendments that alter the fundamental core, crux and
tenor of the complaint are not allowed. I find that the present case stands
distinct. Here, the respondent has already pleaded the existence of an
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agreement with the petitioner in his capacity as Secretary. Moreover, the
fact that the cheque was issued by the petitioner from the account of Shiv
Chatrapati Group of Infrastructure is already a matter of record. Further,
by way of clarification, the respondent has already stated that due to
insufficient funds in the account of Priya Co-operative Housing Society,
the cheque was issued from the account of Shiv Chatrapati Group of
Infrastructure. Therefore, in my view, the learned Trial Court did not
commit any error by allowing the amendment application. Whether to
believe the statements made in the amended portion of the complaint
and to accept the clarification given by the respondent during his
cross-examination is a matter of appreciation. Consequently, I do not find
merit in the argument of the learned counsel for the petitioner that the
impugned orders warrant interference by this Court. Therefore, the
petition does not stand and it is accordingly dismissed.
14. The rule is discharged in the above said terms.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 21/04/2025 18:13:09
