Malayalam Communications Limited vs State Of Kerala
2024 Latest Caselaw 27603 Ker

Kerala High Court

Malayalam Communications Limited vs State Of Kerala on 13 September, 2024

CRL.MC NO. 709 OF 2020              1

                                                       2024:KER:70229
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                   THE HONOURABLE MR. JUSTICE S.MANU

    FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946

                          CRL.MC NO. 709 OF 2020

        AGAINST THE ORDER/JUDGMENT DATED IN CC NO.2940 OF 2015 OF

SPECIAL COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF

CASES U/S.138 NI ACT(JMFC XI), THIRUVANANTHAPURAM

PETITIONER/S:

            MALAYALAM COMMUNICATIONS LIMITED,
            KAIRALI TOWERS, PALAYAM, THIRUVANANTHAPURAM,
            REPRESENTED BY ITS CHIEF OPERATING OFFICER, MR.
            VENKITARAMAN


            BY ADVS.
            R.T.PRADEEP
            M.BINDUDAS
            K.C.HARISH




RESPONDENT/S:

    1       STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,ERNAKULAM-682 031

    2       SINCERE FOOD PRODUCTS,
            REPRESENTED BY PROPRIETOR, DOOR NO.2/658,ERUPPAKOTTIL
            BUILDING, KUMARAPURAM, PALLIKKARA, PERINGALA P.O.,
            ERNAKULAM-683 565

    3       MR.E.S.MUHAMMED,
            PROPRIETOR, DOOR NO.2/658,ERUPPAKOTTIL BUILDING,
 CRL.MC NO. 709 OF 2020           2

                                                    2024:KER:70229
          KUMARAPURAM, PALLIKKARA, PERINGALA P.O., ERNAKULAM-683
          565


          BY ADVS.
          M.S.SAJEEV KUMAR
          LAKSHMI S KUMAR
          A.N.JYOTHILEKSHMI



     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 CRL.MC NO. 709 OF 2020                 3

                                                               2024:KER:70229




                                   ORDER

Dated this the 13th day of September 2024

Petitioner is the complainant in C.C.No.2940/2015 on the

files of the Judicial First Class Magistrate Court for the trial of cases

under NI Act, Thiruvananthapuram. Challenge is against Annexure III

order by which an application for amendment filed by the petitioner

was rejected by the learned Magistrate.

2. Petitioner filed Annexure-I complaint alleging the

offence under Section 138 of the Negotiable Instrument Act against

the party respondents herein. Petitioner is a public limited company,

which owns Television Channels by name 'Kairaly, People and We'.

The allegation in the complaint is that the party respondents issued a

cheque for Rs.1 lakh towards advertisement charges. The said

cheque on presentation for enchashment was returned dishonoured.

After issuing notice under the Act, complaint alleging offence under

Section 138 of NI Act was filed by the company. The Executive

Director of the company authorised its Chief Operating Officer

Mr.Venkitaraman vide a Power of Attorney dtd. 08.11.2011 to file the

complaint and also to adduce evidence.

2024:KER:70229

3. The application for amendment was filed in 2019,

eight years after filing of the complaint. In the application for

amendment, the petitioner sought to incorporate the following:

"Since he is the Chief Operating Officer and he is in-charge of the complainant's business transactions he is a witness to the business transactions with the accused and is fully aware of it and is having personal knowledge about the business transactions with them."

4. This application was opposed by the party

respondents stating that it is highly belated and will cause serious

prejudice to them if allowed. The learned Magistrate after hearing

both sides dismissed the application vide the impugned order. The

learned Magistrate noticed that the amendment sought is not for the

purpose of correcting the clerical or typographical error. The learned

Magistrate observed that, the amendment, if allowed, will change the

nature and character of the complaint and will cause serious

prejudice to the accused. For these reasons the prayer for

amendment was rejected.

5. I have heard Sri.R.T.Pradeep, learned Counsel

appearing for the petitioner and Sri.Sajeev Kumar, learned Counsel

appearing for the party respondents.

6. The learned Counsel for the petitioner submitted

2024:KER:70229 that the order passed by the learned Magistrate is erroneous for the

reason that the amendment sought will not change the nature and

character of the case at all. It is already stated in the complaint that

the Chief Operating Officer has been authorised by the Executive

Director to represent the company, to file the complaint and also to

adduce evidence. He submitted that only an addition to paragraph 11

to the effect that the Chief Operating Officer, who has been

authorised by the company to prosecute the matter had personal

knowledge about the transaction is sought to be incorporated.

Pointing out the dictum laid down by the Hon'ble Supreme Court in

the judgment reported in Narayanan A.C. & another vs. State of

Maharashtra & Another [2014 (11) SCC 790], he submitted that

a statement, specifically regarding the personal knowledge of the

power of attorney holder is to be incorporated in the complaint and

therefore, the amendment was sought. According to the learned

Counsel for the petitioner, no prejudice will be caused to the accused

for the reason that in averments regarding the transactions are not

sought to be modified in any manner.

7. On the other hand, the learned Counsel for the

party respondents submitted that the amendment if allowed will

cause serious prejudice to the accused. He relied on judgments of the

Hon'ble Supreme Court in S.R.Sukumar Vs. S.Sunaad Raguram

2024:KER:70229 [AIR 2015 SC 2757]. Specifically reliying on the observations of

the Apex Court in Paragraph 18 of the judgment in S.R.Sukumar's

case (supra), he submitted that likelihood of prejudice is a relevant

aspect the court shall bear in mind while dealing with an application

for amendment. He also pointed out that the complaint was filed in

the year 2011 and amendment was sought only after 8 years, in

2019. He therefore submitted that the order passed by the learned

Magistrate warrants no interference by this Court.

8. I have heard learned Counsel on either side

elaborately and perused the pleadings also. What is sought to be

incorporated by way of amendment is an assertion to the effect that

the Chief Operating Officer, who has been authorised by the

company to file the complaint and to adduce evidence had personal

knowledge of the transaction.

9. I do not think that the said assertion if

incorporated will make any change to the basic facts pleaded with

the complaint like issuance of the cheque by the accused, dishonour

of the same, issuance of notice under the NI Act demanding

payment, non-payment of the amount involved in the cheque,

despite receipt of notice etc. which are the essential factors in the

prosecution for the offence under Section Section 138 of the NI Act.

2024:KER:70229 The basic factual foundation of the business transaction between the

parties will also be not altered by incorporating such an assertion.

Therefore, I do not think that nature of the case will be altered or

changed in any manner by allowing this amendment. I also take note

of the fact that the assertion sought to be incorporated can be

disputed by the accused during trial. Personal knowledge of the Chief

Operating Officer, which is a factual aspect can be effectively

challenged during the cross examination. The delay on the part of the

complainant in incorporating such an assertion, which was originally

omitted to be stated can also be utilised by the accused during trial.

10. Therefore, I do not think that any serious

prejudice would be caused to the party respondents by allowing the

amendment. The law regarding amendment of pleadings is clear on

the point that the parties shall be permitted to raise all contentions,

of course within the well accepted constraints, in any legal

proceedings, by amending pleadings. Courts have to adopt liberal

approach while considering pleas for amendments.

11. I am of the view that the order under challenge is

liable to be set aside. Therefore, I set aside Annexure III order. The

application for amendment filed by the petitioner as CMP

No.4747/2019 shall stand allowed. Necessary corrections shall be

2024:KER:70229 carried out by the office of the court. It is submitted that the trial

was kept on hold on account of the pendency of this Crl.M.C. before

this Court for the past four years. Therefore, the Trial Court shall

take every endevour to complete the trial at the earliest.

The Crl.M.C. is allowed.

Sd/ S.MANU, JUDGE

jm/

2024:KER:70229

PETITIONER ANNEXURES

ANNEXURE-I TRUE COPY OF THE COMPLIANT DATED 18.11.2011 IN C.C.NO 2940/2015 ON THE FILE OF THE COURT OF TEMPORARY SPECIAL JUDICIAL FIRST CLASS MAGISTRATE FOR THE TRIAL OF CASES U/S. 138 OF N.I. ACT THIRUVANANTHAPURAM

ANNEXURE-II TRUE COPY OF THE C.M.P NO.4747/2019 SEEKING TO AMEND THE COMPLAINT TO IN CORPORATE THE PELA OF THE PERSONAL ACKNOWLEDGEMENT OF THE POWER OF ATTORNEY HOLDER AS REGARD THE TRANSACTION BEING THE CHEF OPERATING OFFICER OF THE COMPANY

ANNEXURE-III CERTIFIED COPY OF THE ORDER DATED 3.1.2020 IN C.M.P.NO.4747/2019 IN C.C NO.2940/2015 BY THE COURT OF TEMPORARY SPECIAL JUDICIAL FIRST CLASS MAGISTRATE FOR THE TRIAL OF CASES U/S. 138 OF N.I ACT, THIRUVANANTHAPURAM