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Parle Biscuits (P) Ltd v/s M/s. Sandeep Marketing Company & Another

    Crl Misc No.M-5814 of 2011

    Decided On, 15 March 2011

    At, High Court of Punjab and Haryana

    By, THE HONOURABLE MR. JUSTICE NIRMALJIT KAUR

    For the Petitioner: Rakesh Nehra, Advocate. For the Respondents: --------.



Judgment Text

Nirmaljit Kaur, J.

1. This is a petition under Section 482 Cr.P.C for setting aside the order dated 12.08.2008 passed by the Judicial Magistrate Ist Class, Jalandhar, vide which, the application filed by the petitioner for inserting `proprietor Ashok Kumar' in between Jai Mata Traders and HUF was rejected with a further prayer for allowing the petitioner to insert the words proprietor Ashok Kumar in between Jai Mata Traders and HUF in the title of Complaint No. 591/2/04 under Section 138 of the Negotiable Instruments Act titled as "M/s. Jai Mata Traders v. Unique Foundry and others" filed by the petitioner against the respondents pending in the Court of Judicial Magistrate Ist Class, Jalandhar.

2. The facts, in short are, that the petitioner M/s Jai Mata Traders had filed a complaint under Section 138 of the Negotiable Instruments Act against respondents No. 1 to 4 on account of dishonour of three cheques of Rs. 20,000/- each. During the pendency of the above said complaint, the petitioner had moved an application for inserting the word `proprietor Ashok Kumar' in between Jai Mata Traders and HUF in the title of the complaint. Due to sheer over sightedness in the head note of the complaint, only Jai Mata Traders and HUF was mentioned, whereas, it should have been mentioned as Jai Mata Traders Proprietor Ashok Kumar HUF. M/s Jai Mata Traders is firm name of Ashok Kumar HUF of which Ashok Kumar is the karta. The Judicial Magistrate Ist Class, Jalandhar, vide order dated 12.08.2008 dismissed the said application filed by the petitioner by observing that the complainant cannot be allowed to make such an amendment in order to fill up lacuna. Now, the petitioner has filed the present petition before this Court under Section 482 Cr.P.C for seeking insertion of words "Proprietor Ashok Kumar" in between "Jai Mata Traders and HUF" in the title of the complaint.

3. As per the contention raised in the petition, only the High Court has inherent powers under Section 482 Cr.P.C to allow correction in the complaint and to allow the amendment and that all the office records of the petitioner, such as income-tax and sales tax, the returns have been filed by HUF known as Ashok Kumar HUF through its Karta Ashok Kumar doing business under the trade name Jai Mata Traders. Further, it does not change the nature of the complaint. The same is only a clerical mistake and the amendment sought is essential.

4. Learned counsel for the respondent has vehemently opposed the prayer of the petitioner on the ground that the same is not maintainable as there is no provision under law for inserting/substituting the complainant. So, on this score also, the petition is liable to be dismissed. It is further submitted that it is not a slip or an oversight.

5. No provision of law has been pointed out to show wherein the head note of the complaint or the very complainant can be substituted.

Hon'ble the Supreme Court in the case of Subodh S. Salaskar v. Jayprakash M. Shah & another, 2008(3) R.C.R.(Criminal) 875 : 2008(3) R.C.R.(Civil) 904 : 2008(4) Recent Apex Judgments (R.A.J.) 654 : 2008(4) Civil Court Cases 011 held that there is no jurisdiction to allow the amendment of a complaint petition at a later stage.

6. This Court in the case of V.K. Gupta v. Manjit Kaur, reported as 2008(3) R.C.R.(Criminal) 430 : 2008(4) Civil Court Cases 139, while refusing to grant the amendment sought with respect to the date of presentation of cheque with the Bank as well as memo of dishonor of cheque by the Banker of the accused held that the complaint was defective and that was not a mere technical defect as the same goes to the root of the matter which cannot be allowed to be amended and while doing so, reliance was placed on the judgment of this Court in the case of M/s. Kumar Industries, Kapurthala v. Sohan Lal, 2002(2) R.C.R.(Criminal) 111 : 2002(2) Civil Court Cases 78, wherein this Court was pleased to lay down as under :-

"50. Therefore, we find that not only the complaint is defective, but also there is total non-application of mind by the learned Magistrate also. This is not a mere technical defect or a mere mis-description of the parties which could be allowed to be amended. The cheques are the very basis of foundation of the complaint. So, when the very foundation has not been properly laid by giving the correct numbers of the cheques, the complaint itself becomes not maintainable. Such a defect which goes to the root of the matter, cannot be allowed to be amended and the complainant cannot be allowed to supplement the complaint by giving the numbers of fresh cheques as the basis of the complaint. The complainant cannot thus be made to suit the evidence introduced. Therefore, in my view, the complaint has to fail and to be quashed on that account."

7. Similarly, in the present case, no amendment can be allowed as in case, the said amendment is allowed mentioning M/s. Jai Maa Traders,

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Proprietor, Ashok Kumar HUF, Sodal Chowk Jalandhar through its Karta Sh. Ashok Kumar, it would change the identity of the complainant as HUF is separate entity than a proprietorship concern. The complaint is, therefore, defective. Moreover, the said application was filed at a stage when the matter was fixed for defence evidence. The petitioner, too, has not been able to show any provision, vide which, the amendment can be allowed. 8. In view of the above discussion, the present petition is dismissed. Petition dismissed.
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