Case Note & Summary
The case arises from a criminal writ petition filed by the petitioners (original accused and the partnership firm) challenging the judgment and order dated 15th November 2022 passed by the learned Additional Sessions Judge, Nagpur. The Additional Sessions Judge allowed the revision application filed by the respondent (original complainant) against the order of the Judicial Magistrate First Class, Nagpur dated 19th October 2016, which had rejected the complainant's application (Exh.182) for amendment of the complaint under Section 138 of the Negotiable Instruments Act, 1881. The complainant and the accused were originally partners of M/s. Srushti Developers. The complainant and his family members retired from the firm, and a deed of retirement and reconstitution was executed on 31st March 1994. The accused continued as partners. The complainant alleged that the accused failed to pay Rs.3 lakhs as per a Memorandum of Understanding. The complainant filed a complaint under Section 138 of the NI Act against the accused. Subsequently, the complainant sought to amend the complaint to add the partnership firm as accused No.1. The Magistrate rejected the amendment application. The complainant filed a revision before the Additional Sessions Judge, who allowed the revision and permitted the amendment. The petitioners challenged this order in the High Court. The High Court held that the Magistrate has inherent power to allow amendment of a complaint to correct formal defects or add necessary parties, provided no prejudice is caused to the accused. The court found that the amendment did not change the nature of the case and was necessary for the just decision of the case. The revisional court was justified in setting aside the Magistrate's order. The High Court dismissed the writ petition, upholding the revisional court's order.
Headnote
A) Criminal Procedure Code - Revision - Section 397 - Revisional Court's Power - The revisional court can set aside an order rejecting an amendment application if the Magistrate's order is erroneous and causes failure of justice - Held that the revisional court correctly allowed the amendment as it did not change the nature of the case (Paras 10-15). B) Negotiable Instruments Act - Complaint Amendment - Section 138 - Inherent Power of Magistrate - A Magistrate has inherent power to allow amendment of a complaint to correct formal defects or add necessary parties, provided no prejudice is caused to the accused - Held that the amendment to add the partnership firm as accused was permissible (Paras 8-12).
Issue of Consideration
Whether the learned Additional Sessions Judge was justified in allowing the amendment of the complaint under Section 138 of the Negotiable Instruments Act, 1881, by setting aside the Magistrate's order of rejection.
Final Decision
The High Court dismissed the criminal writ petition, upholding the order of the Additional Sessions Judge dated 15th November 2022, which allowed the amendment of the complaint.
Law Points
- Amendment of complaint under Section 138 of Negotiable Instruments Act
- 1881
- inherent power of Magistrate to allow amendment
- revisional court's power to set aside rejection of amendment
- no prejudice to accused if amendment is formal and does not change nature of case
