Gujarat High Court

Karamshibhai Muljibhai Anadhan vs State Of Gujarat on 2 February, 2021

Bench: Nikhil S. Kariel

      R/SCR.A/7829/2017                                        ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

   R/SPECIAL CRIMINAL APPLICATION NO. 7829 of 2017
                         With
    R/SPECIAL CRIMINAL APPLICATION NO. 7830 of 2017
=====================================================
            KARAMSHIBHAI MULJIBHAI ANADHAN
                         Versus
             STATE OF GUJARAT & 2 other(s)
=====================================================
Appearance:
MR VINOD M GAMARA(5910) for the Applicant(s) No. 1
MR YS RAJPUT(1383) for the Respondent(s) No. 2,3
MS MAITHILI MEHTA, ADDITIONAL PUBLIC PROSECUTOR(2)
for the Respondent(s) No. 1 in Special Criminal
Application No.7829 of 2017
MS MOXA THAKKAR, ADDITIONAL PUBLIC PROSECUTOR(2) for
the Respondent(s) No. 1 in Special Criminal
Application No.7830 of 2017
=====================================================

CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                          Date : 02/02/2021

                             ORAL ORDER

1. Heard learned Advocate Mr. Vinod M. Gamara for

the applicant, Ms. Maithili D. Mehta, learned

Additional Public Prosecutor in Special Criminal

Application No.7829 of 2017, Ms. Moxa Thakkar,

learned Additional Public Prosecutor in Special

Criminal Application No.7830 of 2017 for the

respondentState and Mr. Yogendra S. Rajput,

learned Advocate for the respondent Nos.2 and 3.

        R/SCR.A/7829/2017                                              ORDER



2. Issue          Rule        returnable             forthwith.            Learned

Advocates waives service of rule on behalf of

the respective respondents.

3. A short question arises for consideration of

this Court in this petition i.e. since there is

no specific provision in the Code of Criminal

Procedure which permits amendment, can an

amendment which does not touch upon the

substantive merits of the application be

permitted.

4. The case of the applicant herein being that

respondent Nos.2 and 3 had given a cheque of

Rupees two lac to the present applicant for some

transactions, which cheque upon being presented

to the bank of the applicant had been

dishonored. Pursuant to this after following the

procedure, as per Section 138 of the Negotiable

Instruments Act, two cases being Criminal

Complaint Case Nos. 2402 and 2403 of 2015 were

preferred by the applicant herein before the

learned Judicial Magistrate First Class at

Palitana, DistrictBhavnagar. It is the case of

R/SCR.A/7829/2017 ORDER

the applicant that when documentary evidence had

been presented to the learned Trial Court,

evidence with regard to the Criminal Case

No.2402 of 2015 had been presented in the second

matter being Criminal Case No.2403 of 2015 and

vice versa. It is further the case of the

applicant that after examination and later

cross examination of the complainant, the error

had come to the notice of the learned Advocate

for the applicant before the Trial Court and

therefore, two applications under Exh.29 and

Exh.27 were presented in Criminal Case Nos.2402

and 2403 of 2015 respectively, interalia

submitting that amendment may be permitted in so

far as the documents presented as evidence i.e.

affidavit at Exh.8, and documents

Exh.9,10,11,12,13,14,15,16,17,18 and 23 as well

as documents at Mark 23/1, 23/2 and 23/3. The

amendment sought for being to change the

evidence submitted in Criminal Case No.2402 of

2015 to Criminal Case No.2403 of 2015 and vice

versa.


5. Learned         Judicial            Magistrate             First            Class,





     R/SCR.A/7829/2017                                                ORDER

Palitana vide order dated 16th June, 2017 had

been pleased to reject the application inter

alia coming to a conclusion that the applicant

could not point out as to under which provisions

of law the said application had been made.

6. Being aggrieved and dissatisfied by the said

order, the present applications came to be filed

in the respective criminal cases.

7. Heard learned Advocate for the applicant Mr.

Vinod Gamara, who submits that the amendment

sought for was of informal nature and which was

for curing an inadvertent error and whereas the

amendment prayed for did not touch upon the

substantive merits of the application and

therefore, the same ought to have been granted.

He further submits that inherent power is

available with the Court in so far as permitting

an amendment, if the amendment, sought for is of

informal nature. He further relied upon the

judgment of the Supreme Court in the case of

Kunapareddy Alias Nookala Shanka Balaji Versus

Kunapareddy Swarna Kumari and Another reported

R/SCR.A/7829/2017 ORDER

in (2016) 11 SCC 774. The Supreme Court in such

case has relied upon on earlier decisions of the

Supreme Court and whereas it is held that an

easily curable legal infirmity could be cured by

means of a formal application for amendment,

more particularly when such amendment would not

cause any prejudice to the other side,

notwithstanding the fact that there is no

enabling provision available in the Court for

entertaining such amendment. Relying upon the

aforesaid judgment, learned Advocate submits

that the amendment as prayed for ought to have

been granted by the learned Trial Court and

since the same had not been granted this Court

may exercise extraordinary jurisdiction

available to this Court for granting the said

amendment and directing the criminal cases to

be conducted in accordance with law.

8. As against the same, learned Advocate Mr.

Yogendra Rajput submits that the error in

question had been committed approximately two

years prior to filing of the application and

whereas even the cross examination of the

R/SCR.A/7829/2017 ORDER

complainant was over and therefore, he submits

that such a belated stage granting such

application would cause prejudice to the

original respondents.

9. Learned Additional Public Prosecutor appearing

on behalf of the respondentState has adopted

the submissions made by learned Advocate Mr.

Yogendra Rajput.

10. Heard learned Advocates for the parties who had

not submitted in his further arguments.

11. Having heard the learned Advocates for the

parties and perused the record, it appears that

the issue herein is a case of normal human

inadvertence in as much as since there are two

applications which were proceedings parallely

and which were numbered consecutively being

Criminal Case Nos. 2402 and 2403 of 2015. That,

at the time of submitting relevant documents for

leading evidence, the numbers of the criminal

case mentioned in which such documents were

submitted got interchanged. The amendment being

sought for is just to change the numbers in so

R/SCR.A/7829/2017 ORDER

far as the said documents are concerned and

whereas in opinion of this Court, there is no

substantive change being made by way of an

amendment.

12. At this stage it would be relevant to note

that in application Exh.29 in Criminal Case

NO.2402 of 2015 and Exh.27 in Criminal Case

No.2403 of 2015, a very specific averment has

been made that the learned Advocates appearing

for the complainant before the trial Court had

conducted a common cross examination of the

complainant in both the cases. This averment has

not been controverted by the respondent either

before the learned Trial Court or before this

Court.

13. At this stage, this Court feels that the

observations of the Supreme Court in case of

S.R. Sukumar Versus S. Sunaad Raghuram reported

in (2015) 9 SCC 609, which is relied upon by

the Supreme Court in the case of Kunapareddy

Swarna Kumari Versus Kunapareddy (Supra) would

be relevant.

R/SCR.A/7829/2017 ORDER

"17. What we are emphasising 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 applicant, therefore, that there is no power of amendment has to be negated.

19. What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made related to a 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 Code of entertaining such amendment, the Court may permit such an amendment to be made. On the contrary, 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, then the court shall not allow such amendment in the complaint."

14. From the ratio laid down by the Supreme

Court as herein above, it is clear that though

there is no enabling provisions in the Code of

Criminal Procedure for entertaining an

R/SCR.A/7829/2017 ORDER

application for amendment, the Court may permit

such an amendment if the same relates to a

simple infirmity which can be curable by means

of a formal amendment and the granting of such

amendment would not cause any prejudice to the

other side. That as it is decided from the

quoted portion two conditions are laid down by