Bapuji Murugesan vs Mythili Rajagopalan

T. Sudanthiram, J.—The revision petitioner herein is the complainant and the respondent herein is the accused in C.C. No. 1046 of 2005,

on the file of the IX Metropolitan Magistrate, Saidapet, Chennai. The petitioner herein filed a private complaint against the respondent herein for an

offence u/s 138 of Negotiable Instruments Act. Pending trial, after cross examination of P.W.1 complainant, the petitioner herein filed a petition to

amend the cause title by inserting M/s.Hex Trading-HUF, represented by Karta above the name mentioned as Babuji Murugesan. The said

petition was allowed by the learned Magistrate. Against the said order, the respondent herein filed a revision before the Sessions Court in Crl.R.C.

No. 52 of 2008 and the learned V Additional Sessions Judge, Chennai, set aside the order passed by the learned Magistrate and allowed the

revision. Aggrieved by the order of the learned Sessions Judge, the petitioner herein has preferred this criminal revision petition before this Court.

According to the petitioner herein, though the complaint was filed in the name of Bapuji Murugesan, actually the complaint was filed by the said

Bapuji Murugesan only as Karta of Hindu undivided family running the business of Hex Trading. The loan was given to the accused and towards

return of the said loan, the cheques were issued by the accused favouring M/s.Hex Trading. In the cross examination, it was suggested by the

accused that a wrong person has filed the complaint. Then, in the said circumstance, it had become necessary for the complainant to carryout the

amendment of the cause title.

According to the respondent herein, complaint was filed only in the individual capacity and not as a Karta of Hindu Undivided Family. The

respondent herein executed only a mortgage deed in favour of the petitioner and the petitioner demanded blank cheques as additional security, but

the respondent never issued the cheques to M/s.Hex Trading and the accused has no liability towards Hex Trading.

The learned Magistrate allowed the petition for amendment on the ground that the accused had admitted about the issuing of the cheques as a

security and also admitted the mortgage deed and the cheques were given to ''M/s.Hex Trading'' which is the business concern of the Hindu

Undivided Family for which the complainant is a Karta.

The learned Additional Sessions Judge reversed the order on the ground that the cheques were issued only in favour of ''M/s.Hex Trading'' and

only after the proceedings of the trial in part and and after cross examination of the witness, the amendment petition was filed belatedly and in the

Criminal Procedure Code, there is no specific provision to amend the pleadings of the complaint and the amendment petition should not have been

allowed to fill up the lacuna.

The learned Counsel for the petitioner herein submitted that for the notice issued to the accused u/s 138 of Negotiable Instruments Act, in his

reply the accused had admitted about the receipt of Rs. 20 lakhs and also about executing the mortgage deed. The petitioner Bapuji Murugesan is

the Karta of the Hindu Undivided Family which was running the business in the name of ''M/s.Hex Trading'' and the loan was given to the accused

only from the fund of the said ''M/s.Hex Trading'' and it was only an omission in the complaint to mention that the petitioner is the Karta of Hindu

Undivided Family and no prejudice will be caused to the accused by amending the cause title, since the liability had already been accepted by the

accused.

Per contra, the learned Counsel for the respondent submitted that the payment was made by the petitioner only in his individual capacity, the

mortgage deed was also executed only in favour of Bapuji Murugesan and not to ''M/s.Hex Trading'' and the legal notice was also issued by the

petitioner only in his personal capacity and not as the Karta of the Hindu Undivided Family or as a sole proprietor of the business ''M/s.Hex

Trading''.

The learned Counsel for the respondent further submitted that as per the cheque, the payee is ''M/s.Hex Trading'' and not the petitioner and the

petitioner is neither the holder, nor payee nor the holder in due course of the cheque, and as such, the whole complaint has to fall or fail.

The learned Counsel for the respondent vehemently contended that after the cross examination of P.W.1 and after establishing that there is no

legally executable liability from the accused to the holder of the cheque namely ''M/s.Hex Trading'', there is no question of amending the cause title

of the complaint which is not permissible in law.

This Court considered the submissions made by both parties and perused the records. Admittedly, the cheque was drawn in favour of

''M/s.Hex Trading'', and the cheque was deposited in the account of ''M/s Hex Trading'' which has been returned for ""insufficient funds"".

According to the complainant, at present, ''M/s. Hex Trading'' belongs to the Hindu Undivided Family, of which, the complainant Bapuji

Murugesan is the Karta of the family. In the complaint filed by the complainant, it is mentioned that the promissory note was executed in favour of

the complainant and a mortgage deed was also executed and towards the repayment of loan, the cheques were issued by the accused. Nowhere in

the complaint, it is mentioned that the complainant Bapuji Murugesan acted as the Karta of Hindu Undivided Family. According to the accused

also, the amount of receiving Rs. 20 lakhs has been admitted and issuance of cheques also admitted, but it is stated by the accused that the

cheques were given blank only as a security.

Before going to the further details of this case, it is to be decided first whether an amendment in the cause title could be made. A complaint in

writing is made before the learned Magistrate u/s 190(1)(a) of Cr.P.C only in order to take cognizance of an offence by Magistrate. On taking

cognizance of an offence, on recording the sworn statement of the complainant and recording the statement of the witnesses, if any, and on issuing

process to the accused, and after the appearance of the accused, the Court is mainly concerned with the evidence recorded during trial. After

evidence being recorded, the Court is not concerned with the particulars mentioned in the complaint, unless it is specifically brought on record of

the evidence regarding any omissions or contradictions in the complaint. Therefore, it is true that after filing the complaint, the narration or any other

facts mentioned in the complaint, cannot be altered and there is no provision also in the Criminal Procedure Code. At the same time, the criminal

procedure code also does not say anything about the format of the complaint. The particulars of cause title given in the complaint is only for the

purpose of understanding who is the complainant and who is the accused. The said cause title is also to contain other particulars regarding the

complainant and the accused. Though there is no specific provision in the Criminal Procedure Code to amend the cause title, it cannot be said that

no amendment could be made if any mistake had occurred regarding particulars or any other details given in the cause title. At the same time, the

amendment cannot be carried out in the cause title so as to change the structure of complaint or to substitute the main complainant or the accused.

A different person even with legal entity cannot be substituted, since the complaint must be subject to the period of limitation. Only in case of death

of complainant the legal representatives may be permitted or if the complainant is represented by any person by power of attorney or by any legal

entity, the person who is representing the complainant may be substituted with the permission of the Court.

In this particular case, the complaint is filed only by Bapuji Murugesan in his individual capacity and even in the body of the complaint as

already mentioned, there is no reference to M/s. Hex Trading. Therefore, it is not possible to amend the name of the complainant by changing the

main identity of the complainant.

For the above said reason, the amendment petition filed by the complainant is not maintainable. But at the same time, this Court observes as

follows:

The cheque is issued in favour of ''M/s.Hex Trading''. The said Hex Trading is the holder or drawee of the cheque. The question to be decided by

the trial Court is that whether there is any executable liability from the accused to M/s.Hex Trading and in such a case, whether Bapuji Murugesan

who is the Karta of Hindu Undivided Family to which M/s Hex Trading belongs to, by filing a complaint in his name omitting to mention the name

of the Trade would affect the case of the complainant. The learned Magistrate my allow both parties to let in further evidence if any and will decide

the issue accordingly.

With the above observations, this revision petition is dismissed. Consequently M.P. No. 1 of 2009 is closed.