[Cites 8, Cited by 0]

Kerala High Court

Madhu vs Vibitha on 6 January, 2026

Author: C.S.Dias

Bench: C.S.Dias

                                                        2026:KER:14
CRL.MC NO. 8635 OF 2025

                                   1


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

   TUESDAY, THE 6TH DAY OF JANUARY 2026 / 16TH POUSHA, 1947

                     CRL.MC NO. 8635 OF 2025

        AGAINST THE ORDER/JUDGMENT DATED 13.08.2025 IN ST NO.268

OF 2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, PERAMBRA

PETITIONER/COMPLAINANT:

            MADHU,
            AGED 43 YEARS
            S/O.APPUKUTTAN NAIR, RESIDING AT KARTHIKA HOUSE,
            THURUTHYAD POST, BALUSSERY, KOZHIKODE., PIN - 673612


            BY ADVS.
            SRI.B.KRISHNA MANI
            SMT.N.V.SANDHYA
            SMT.DHANUJA M.S



RESPONDENT/S:

    1       VIBITHA,
            W/O.MANOJ, RESIDING AT PULIVALATHIL HOUSE,
            THURUTHYAD POST, BALUSSERY, KOZHIKODE., PIN - 673612

    2       STATE OF KERALA,
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA, ERNAKULAM., PIN - 682031


            BY
            SMT.SEETHA S., SR.PP
            ADV SHRI.K.P.SUDHEER
                                                     2026:KER:14
CRL.MC NO. 8635 OF 2025

                               2




     THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL HEARING
ON 18.12.2025, THE COURT ON 06.01.2026 PASSED THE FOLLOWING:
                                                                           2026:KER:14
CRL.MC NO. 8635 OF 2025

                                           3


                                   C.S.DIAS,J.
          ====================
                      Crl. M.C No.8635 of 2025
          - - - - - --- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
              Dated this the 6th day of January, 2026

                                     ORDER

The petitioner is the complainant in S.T.No.268 of 2019

on the file of the Court of the Judicial Magistrate of First

Class-II, Perambra (in short, 'Trial Court'), which has been

filed against the 1st respondent alleging the commission of

the offence punishable under Section 138 of the Negotiable

Instruments Act (for brevity, 'Act').

2. The petitioner has stated in the criminal

miscellaneous case that, in the cross-examination of DW1

(the Assistant Manager of the drawee bank), he testified

that the cheque was not that of the 1 st respondent, but her

husband. Accordingly, the petitioner filed an application

seeking leave to implead the 1 st respondent's husband as

an additional accused and for the consequential

amendment of the complaint. The 1st respondent opposed 2026:KER:14 CRL.MC NO. 8635 OF 2025

the application. By the impugned order, the Trial Court

dismissed the application. The impugned order is ex facie

erroneous and unsustainable in law.

3. I have heard Sri. Krishna Mani B., the learned

counsel for the petitioner, the learned counsel for the 1 st

respondent and the learned Public Prosecutor.

4. The petitioner has filed the complaint specifically

asserting that the 1st respondent had issued a cheque for

Rs.7,00,000/- in discharge of a legally enforceable debt.

However, the cheque, upon presentation to the bank, was

dishonoured for insufficiency of funds in the 1 st

respondent's bank account. Although the petitioner issued

a statutory notice demanding payment of the cheque

amount, the 1st respondent has failed to pay it. Therefore,

the 1st respondent has committed the offence punishable

under Section 138 of the Act.

5. In the application seeking leave to amend the

complaint, the petitioner states that it was only during the 2026:KER:14 CRL.MC NO. 8635 OF 2025

cross-examination of DW1 that the petitioner learnt that

the cheque was not that of the 1 st respondent, but of her

husband. Hence, the petitioner seeks to implead the 1 st

respondent's husband as an additional accused and carry

out consequential amendments to the complaint.

6. Unlike the Code of Civil Procedure, there is no

specific provision either in the Code of Criminal Procedure

('Cr. P.C'), the Bharatiya Nagarik Suraksha Sanhita

('BNSS), or the Act permitting or prohibiting the

amendment of a complaint. It is well settled that, even

though the inherent power under Section 482 Cr.P.C. or

528 BNSS is saved only in favour of High Courts; the

Criminal Courts of the District Judicature are not denuded

of power to do what is necessary for the dispensation of

justice in the absence of a specific enabling provision,

provided there is no prohibition and no illegality or

miscarriage of justice. Therefore, to meet the ends of

justice or to prevent prejudice or miscarriage of justice, 2026:KER:14 CRL.MC NO. 8635 OF 2025

what is not prohibited can be taken as permitted.

Nevertheless, such inherent power has to be exercised

judiciously and not arbitrarily or capriciously (Read the

decisions of this Court in Madhavi v. Thupran [1987 KHC

150] and Aliyar v. Pathu [1988 KHC 475]).

7. The question whether a criminal court has the

power to order the amendment of a complaint is no longer

res integra. In S.R. Sukumar v. S. Sunaad Raghuram

[(2015) 9 SCC 609], the Hon'ble Supreme Court has held

as under:

"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 relates 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 for 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."

8. In Munish Kumar Gupta vs. Mittal Trading

Company [2024 SCC OnLine SC 1732], the Hon'ble 2026:KER:14 CRL.MC NO. 8635 OF 2025

Supreme Court, while disallowing an amendment seeking

alteration in the date of the cheque, held as follows:

"9. In a matter of the present nature, where the date is a relevant aspect based on which the entire aspect relating to the issue of notice within the time frame as provided under the Negotiable Instruments Act, 1881, and also as to whether as on the date there was sufficient balance in the account of the issuer of the cheque would be the question, the amendment, as sought for, in the present circumstance, was not justified."

9. This Court in Kuttan v. Varanamalyam Kuries

(P) Ltd. and Another [2020 (1) KHC 551], after relying on

the decision in Sukumar S.R (supra) and the decisions of

this Court in Linda John Abraham v. Business India

Group Company and others [2011 (4) KHC 587] and

Hafsa Rahman T. v. State of Kerala and others [2017 (3)

KHC 49], has culled out the principles to permit the

amendment of a complaint. It is succinctly held that, if the

amendment of the complaint is only formal in nature and

not substantial, the amendment can be allowed.

Nevertheless, if an amendment to the complaint causes

serious prejudice to the accused and changes the nature 2026:KER:14 CRL.MC NO. 8635 OF 2025

and character of the complaint, the amendment must be

rejected.

10. Recently, in Bansal Milk Chilling Centre v.

Rana Milk Food Pvt. Ltd. [2025 KHC OnLine 6640], the

Hon'ble Supreme Court has reiterated the above-stated

principles to permit the amendment of a complaint.

11. In the present case, the petitioner seeks to

implead the 1st respondent's husband as an additional

accused and carry out consequential amendments to the

complaint in view of the oral testimony of DW1.

12. Undisputably, the petitioner has no such case in

the complaint that the cheque belongs to the 1 st

respondent's husband or that the petitioner had issued a

statutory demand notice to the 1st respondent's husband as

per the mandate under the Act. It is at the fag-end of the

trial that the petitioner wants to implead the 1 st

respondent's husband as an additional accused and to

carry out consequential amendments to the complaint. The 2026:KER:14 CRL.MC NO. 8635 OF 2025

impleadment and amendment are substantial in nature,

which would change the very complexion and fabric of the

complaint and would cause severe prejudice to the accused

sought to be impleaded. Going by the exposition of law in

the afore-cited precedents and that the amendment is not

formal in character or to cure a curable or simple infirmity,

I am of the definite view that the amendment cannot be

permitted. The Trial Court has rightly rejected the

application. There is no illegality, impropriety or

irregularity in the impugned order, warranting the

interference of this Court under Section 528 of the BNSS.

The Crl. M.C. is devoid of any merits and is accordingly

dismissed, which shall be without prejudice to the right of

the petitioner to work out his legal remedies, if any are

available under the law.

Sd/-

C.S.DIAS, JUDGE dkr 2026:KER:14 CRL.MC NO. 8635 OF 2025

APPENDIX OF CRL.MC NO. 8635 OF 2025

PETITIONER ANNEXURES

Annexure I TRUE COPY OF THE S.T.NO.268/2019 BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, PERAMBRA UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT DATED 15/5/2019.

Annexure II TRUE COPY OF THE CHEQUE DATED 25/1/2019 Annexure III TRUE COPY OF THE NOTICE DATED 8/4/2019. Annexure IV TRUE COPY OF THE AFFIDAVIT DATED 16/5/2025.

Annexure V TRUE COPY OF THE COUNTER STATEMENT FILED BY THE ACCUSED.

Annexure VI TRUE COPY OF THE. ORDER DATED 13/8/2025 IN C.M.P.NO.2020/2025 IN S.T. NO.268/2019 BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, PERAMBRA.