Case Note & Summary
The case involves a criminal application under Section 482 of the Code of Criminal Procedure, 1973, filed by the applicants (accused) challenging an order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha. The Magistrate had allowed an application (Exh.68) in Criminal Complaint Case No. 579 of 2008, seeking amendment to the complaint filed under Section 138 of the Negotiable Instruments Act, 1881. The original complainant, Syed Mazaruddin, had agreed to sell his land to the accused, who issued a cheque for Rs.20,00,000/- dated 30.10.2007. The cheque was dishonoured with the remark 'drawer had stopped the payment'. After issuing a notice, the complainant filed the complaint. The Magistrate took cognizance and issued process against the accused. Subsequently, the complainants (legal heirs of the deceased complainant) filed an amendment application seeking to add a new accused (Dhiraj Champalal Chhallani) and to incorporate pleadings regarding the vicarious liability of accused nos.1 to 3 as partners of the firm. The accused opposed the amendment, arguing that it was not permissible after cognizance and process. The Magistrate allowed the amendment, leading to the present application. The High Court examined the issue and held that the amendment sought to change the nature of the complaint by adding a new accused and introducing vicarious liability pleadings after the stage of cognizance and process. Such amendment is not permissible under the scheme of the Negotiable Instruments Act and would cause prejudice to the accused. The Court quashed the order allowing the amendment, thereby allowing the criminal application.
Headnote
A) Criminal Procedure - Quashing of Order - Section 482 Code of Criminal Procedure, 1973 - Challenge to order allowing amendment of complaint - The applicants (accused) challenged the order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha, allowing amendment to the complaint under Section 138 of the Negotiable Instruments Act, 1881. The amendment sought to add a new accused and incorporate pleadings regarding vicarious liability of existing accused. The High Court held that such amendment after cognizance and process is not permissible as it would cause prejudice to the accused and is not contemplated under the scheme of the N.I. Act. The order was quashed. (Paras 1-10) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 Negotiable Instruments Act, 1881 - Amendment of complaint - The original complaint was filed under Section 138 of the N.I. Act. After cognizance and issuance of process, the complainants sought to amend the complaint to add a new accused and plead vicarious liability. The Court held that the amendment would change the nature of the complaint and is not permissible at that stage. The order allowing amendment was set aside. (Paras 2-10) C) Criminal Procedure - Cognizance and Process - Sections 190, 204 Code of Criminal Procedure, 1973 - Effect of amendment after process - Once the Magistrate has taken cognizance and issued process, the complaint cannot be amended to add new accused or introduce new facts. Such amendment would be illegal and liable to be quashed under Section 482 CrPC. (Paras 5-10)
Issue of Consideration
Whether the amendment to the complaint under Section 138 of the Negotiable Instruments Act, 1881, seeking to add a new accused and incorporate pleadings regarding vicarious liability, is permissible after the Magistrate has taken cognizance and issued process.
Final Decision
The High Court allowed the criminal application and quashed the order dated 20.04.2013 passed by the Judicial Magistrate, First Class, Darwha, allowing the amendment application (Exh.68) in Criminal Complaint Case No. 579 of 2008.
Law Points
- Amendment of complaint under Section 138 of Negotiable Instruments Act
- 1881 after cognizance and process is not permissible
- Addition of accused after cognizance is not permissible
- Vicarious liability must be pleaded at the time of filing complaint
- Section 482 CrPC can be invoked to quash illegal orders
