M/S Venkat International Public ... vs Sri Nagaraj Patel
2023 Latest Caselaw 6938 Kant

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                                                           NC: 2023:KHC:36197
                                                       CRL.P No. 8878 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 4TH DAY OF OCTOBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                             CRIMINAL PETITION NO. 8878 OF 2023

                   BETWEEN:

                   1.    M/S. VENKAT INTERNATIONAL PUBLIC SCHOOL,
                         A EDUCATION INSTITUTION
                         AFFILIATED TO C.B.S.E, NEW DELHI.
                         HAVING ITS OFFICE AT 66TH CROSS,
                         5TH BLOCK, RAJAJINAGAR,
                         BENGALURU-560 010.
                         REPRESENTED BY ITS CHAIRMAN AND
                         AUTHORIZED SIGNATORY
                         SRI T.BALAKRISHNA

                   2.    SRI T.BALAKRISHNA
                         S/O LATE CHIKKATHAYAPPA
                         AGED ABOUT 63 YEARS
Digitally signed         M/S VENKAT INTERNATIONAL PUBLIC SCHOOL,
by SHARANYA T            CHAIRMAN AND AUTHORIZED SIGNATORY,
Location: HIGH
COURT OF
                         HAVING ITS OFFICE AT 66TH CROSS,
KARNATAKA                5TH BLOCK, RAJAJINAGAR,
                         BENGALURU-560 010.
                                                             ...PETITIONERS

                                (BY SRI KETHAN KUMAR, ADVOCATE)
                   AND:

                   1.    SRI NAGARAJ PATEL
                         S/O C. RAJASHEKARAIAH
                         HINDU,
                         AGED ABOUT 55 YEARS,
                         R/AT NO.57, 2ND MAIN,
                                -2-
                                          NC: 2023:KHC:36197
                                      CRL.P No. 8878 of 2023




    3RD STAGE,
    VINAYAKA LAYOUT,
    VIJAYANAGARA,
    BENGALURU-560 040.
                                               ...RESPONDENT

            (BY SRI J.RAVISUNDER, ADVOCATE)
     THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER ON APPLICATION DATED
01.07.2023 PASSED BY THE IV A.S.C.J. AND A.C.M.M.,
BENGALURU     IN   C.C.NO.5912/2019    (IN   CRIMINAL
PROCEEDINGS P/U/S. 138 OF NEGOTIABLE INSTRUMENTS
ACT) VIDE ANNEXURE-A.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                          ORDER

Heard the learned counsel for the petitioner and

also the counsel appearing for the respondent.

2. This petition is filed praying this Court set aside

the order passed by the Trial Court in allowing the

amendment dated 01.07.2023 in inserting the name of

this petitioner a chairman of the institution i.e., accused

No.1 before the Trial Court.

3. The counsel appearing for the petitioner

would vehemently contend that the Trial Court committed

an error in allowing the amendment and the same causes

the prejudice against the petitioner herein and he has

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

already taken specific defense before the Trial Court when

the matter is set out for the defense evidence at this

juncture an application is filed for amendment and same

ought not to have been allowed.

4. The counsel in support of his argument relies

upon the judgment of the Apex Court passed in (2015) 9

Supreme Court Cases 609 in case of S.R.Sukumar

V/s S.Sunaad Raghuram and brought to notice of this

Court paragraph Nos.18 and 20 and in paragraph No.20

the Apex Court held that the amendment application was

filed 24.05.2007 to carry out the amendment by adding

paragraph Nos.11(a) and 11(b). Though, the proposed

amendment was not a formal amendment, but a

substantial one, the Magistrate allowed the amendment

application mainly on the ground that no cognizance was

taken of the complaint before the disposal of amendment

application. Firstly, the Magistrate was yet to apply the

judicial mind to the contents of the complaint and had not

taken cognizance of the matter. Secondly, since summons

was yet to be ordered to be issued to the accused, no

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

prejudice would be caused to the accused. Thirdly, the

amendment did not change the original nature of the

complaint being one for the defamation. Fourthly, the

publication, of poem Khalanayakaru being in the nature of

subsequent event created a new cause of action in favor of

the respondent which could have been prosecuted by the

respondent by filing a separate complaint and therefore, to

avoid multiplicity of proceedings, the Trial Court allowed

the amendment application. Considering these factors

which weighed in the mind of the Courts below, in our

view, the High Court rightly declined to interfere with the

order passed by the Magistrate allowing the amendment

application and the impugned order does not suffer from

any serious infirmity warranting interference in exercise of

jurisdiction under Article 136 of the Constitution.

5. The counsel would vehemently contend that

this amendment is allowed only prior to taking of

cognizance and once the cognizance is taken and defense

is set out ought not to have allow the amendment.

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

6. Per Contra, the counsel appearing for the

respondent would vehemently contend that the

amendment sought before the Trial Court is only a curable

defect and by inadvertently the name of the Chairman has

not been mentioned as represented by Chairman.

7. The Counsel also brought to notice of this

Court already this Chairman is party and accused No.2 and

while arraying him as accused also specifically mentioned

as a Chairman of the institution and no prejudice will be

caused to him by making such an amendment and the

same is a curable defect.

8. The counsel also would vehemently contend

that in the very same judgment relied upon by the

petitioner's counsel, the Apex Court also observed that if

amendment sought to be made in a simple informative in

which is curable by means of a formal amendment and by

allowing such amendment no prejudice would be caused

to the other side, Court may permit such amendment to

be made.

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

9. The counsel would submits that this judgment

will helpful to the respondent. The counsel for respondent

also brought to notice of this Court the judgment of the

Punjab and Haryana High Court which was decided on

04.01.2023 in CRM-M-6036-2018(O&M) and also referred

the very judgment of the Apex Court and observed in

order that if the amendment is sought for curable defect,

the same can be allowed and the same will not cause any

prejudice to the other side. Hence, the Trial Court has not

committed any error and the Trial Court has also made an

observation in the order that by allowing the amendment

it will not cause any prejudice to the petitioner herein and

an observation is made that in order to solve the real

controversy between the parties and for proper

adjudication of the petition, the application is allowed and

not committed any error.

10. Having heard the petitioners' counsel and

also the counsel for the respondent and also considering

the prayer sought before the Trial Court and only insertion

of the Chairman and authorized signatory representing the

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

accused No.1. On perusal of the complaint accused No.1 is

the institution i.e., M/s Venkat International Public School

and while filing the compliant, except arraying the Public

School, nothing is stated with regard to represented by

any person. No doubt after the commencement of the Trial

an application is filed to amend the same.

11. On perusal of the complaint and this

petitioner has already been arrayed as accused No.2 and

in the capacity of the Chairman and authorized signatory.

The counsel for the petitioner brought to notice of this

Court that no notice was issued to him as Chairman

representing the institution. On perusal of the legal notice

available before this Court, no doubt except making the

School as party to the notice and not stated that he is

represented by the Chairman. But, on perusal of notice,

notice also issued against this petitioner to represent as

Chairman, Venkat International Public School and

specifically it is pleaded in the notice itself that he is the

Chairman of the Venkat International Public School and an

error is committed in arraying the accused No.1 only

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

mentioned the School and not mentioned represented by

authorized person and when such being the case, notice is

also issued against him and only amendment is with

regard to the inadvertently, the same is left out while filing

the complaint and specific notice was also given to this

petitioner as the Chairman of the said institution and the

same is curable defect as contended by the respondent's

counsel.

12. The judgment relied upon by the petitioners'

counsel is also aptly applicable to the facts of the case on

hand and the same is only curable defect and only sought

for representing the 1st accused as Chairman. The same

will not prejudice as contended by the petitioners' counsel.

13. Hence, I do not find any error committed by

the Trial Court in allowing the respondent to carryout

amendment and the same is only a formal amendment

and the same is a curable defect which has been corrected

by allowing the application for amendment. No doubt there

is no provision in Code of Criminal Procedure for

amendment. Even in the absence of any provisions for

NC: 2023:KHC:36197 CRL.P No. 8878 of 2023

amendment in order to meet the ends of justice, the Court

can allow the amendment to cure the defect. Hence, no

ground is made out to set-aside the order of the Trial

Court.

14. In view of the discussions made above, I pass

the following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

RHS