ZAHOOR AHMAD MIR Vs. BARAMULLA CENTRAL COOPERATIVE BANK

JUDGEMENT

(1.) In this Criminal Revision petition read with Section 561-Cr. P.C., the petitioner, i.e. the accused in the complaint filed under Section 138 of the Negotiable Instrument Act, titled 'Ghulam Ahmad Dhobi v. Zahoor Ahmad Mir ', has assailed the validity of the order dated 25th of April, 2016, passed by the Court of the learned Additional Special Mobile Magistrate, Panthachowk, Srinagar, on the grounds, inter alai, that the same has resulted in the miscarriage of justice inasmuch as it has resulted in making a substantial amendment in the complaint, causing serious prejudice to the petitioner and depriving him of the legal rights having accrued to him. It is further stated that the complaint had been instituted by the original complainant in his individual capacity and not acting on behalf of or in representative capacity of the respondent herein, which, otherwise, being a Cooperative Society is a legal personality under law capable to sue or be not sued. The original complainant represented none, but himself alone. He did not plead for any representation or place any such authority on record. It is further contended that the respondent herein, being the payee of the cheques in question, had not chosen to invoke the jurisdiction of the Court below by filing the complaint and, in the face of this position, a very strong legal right of no complaint by the payee as also the bar of limitation had accrued to the petitioner, which could not be taken away by resorting to amendment under the garb of rectification of an error. The error of law in question, as stated, being a substantial error of law could not be treated as an error capable of being cured under law. The petitioner has also pleaded that the order of cognizance dated 12th of August, 2006, is based on the abuse of the process of the Court inasmuch as the complaint had not, at all, been filed by the payee of the cheques, alleging that the same have been drawn by the accused/petitioner herein. The complaint in question had been instituted by the original complainant, who was neither the payee of the cheques nor did he either act as a representative or possessed the authority to act for and on behalf of the payee (i.e. Baramulla Central Cooperative Bank), which under law, being a registered Cooperative Society was possessed of legal personality, capable to sue and be sued. In this behalf, the petitioner has stated that under law, no Court is empowered to take cognizance of an offence punishable under Section 138 of the Negotiable Instrument Act, except on a complaint made by the payee.

(2.) Heard and considered.

(3.) By the order impugned, the learned trial Court has allowed the application seeking rectification of an error as regards the particulars detailed in the cause title of the complaint. The original form of the complaint before filing the application was 'Gh. Ahmad Dhobi S/o Ab. Khaliq Dhobi R/o Baramulla, presently working as General Manager, Baramulla Central Cooperative Bank v. the petitioner herein ' and, by allowing the application, the cause titled has been rectified to read as 'Baramulla Central Cooperative Bank, Tangmarg, through its Branch Manager v. the petitioner herein'.