Mr. Alexander Thomas, J. - (1.)The petitioner herein is the complainant in C.C.No.632/2010 on the file of the Judicial First Class Magistrate Court-II, Palakkad, alleging offence punishable under Sec. 138 of the Negotiable Instruments Act, against the respondents 2 to 5 herein (accused Nos. 1 to 4 therein). As per the averments in Anx.A-1 complaint, R-2 herein is a company running the business of kuries and R-3 herein is the Managing Director and R-4 and R-5 are the Directors of the company. According to the petitioner, it is averred in the complaint that the petitioner is a subscriber to the kuri and towards settlement cheque dated 29.5.2010 for an amount of Rs. 94,291.00 drawn from the account of the 2nd respondent company and payable in favour of the complainant was presented for encashment, which resulted in dishonor of the cheque on the ground of insufficiency of funds. Thereafter, the complainant had complied with the requisite statutory formalities for the initiation of the complaint and had taken steps for instituting the above complaint as per Anx.A-1, which was taken on file as C.C.No.632/2010 on the file of the Judicial First Class Magistrate Court-II, Palakkad.
(2.)In para 2 of Anx.A-1 complaint, it is averred that towards settlement amount of kuri deposited by the complainant, the accused has issued cheque bearing No.007554 dated 29.5.2010 for a sum of Rs. 94,291.00 drawn from the HDFC Bank Ltd, Palakkad Branch, payable in favour of the complainant for settlement amount of kuri deposited with the accused. But it is to be noted that in the said paragraph No. 2 it is not averred with clarity as to which among the accused issued and signed the cheque in question. However, in para 6 of Anx.A-1 complaint, it is stated that "................. the cheque was issued by the 2nd accused in the presence and at the instance and direction of the other accused.....................". Accused No. 2 (R-3 herein) happens to be one Sri. P.V. Sudhakaran, who is stated to be the Managing Director of the accused No. 1 company. The cheque in question was also produced along with the complaint as can be seen from the last page of Anx. A-1 complaint. A copy of the said cheque has been made available in this proceedings as Anx.A-6 and a perusal of the said cheque shows that the cheque is issued for and on behalf of accused No.1 company [Sree Lakshmi Kuries and Loans (P) Ltd.], and the signatory of the cheque as can be seen from the seal appended thereto is one Sri. V. Radhakrishnan, Director of the said company. Accused No.4 (R-5 herein) is one P.V. Radhakrishnan, who is stated to be the Director of the company. It also happened that the petitioner-complainant had tendered proof affidavit in lieu of his chief examination as PW-1 and the said averments in para 6 of the complaint were reproduced in the said chief affidavit and thus it was stated therein also that the cheque in question was issued by accused No. According to the petitioner it was only much later that he had realized that the averments in para 6 of Anx.A-1 complaint that the cheque was issued by accused No.2 was a typographical clerical error as actually the cheque produced along with the complaint itself would show that the signatory of the said cheque was one Sri. V. Radhakrishnan, Director of the accused No.1 company and on realising the said clerical mistake, he had made Anx.A-2 application for correction of averments in para 6 of Anx.A-1 complaint as well as corresponding averments in the proof affidavit. The said plea for amendment was made as per Crl.M.P.No. 7884/2013 in C.C.No. 632/2010, which was considered by the trial court and was rejected as per Anx.A-4 order dated 13.11.2013. The trial court has mainly found that there are no provisions in the Cr.P.C to amend the complaint and chief affidavit those are filed before the court and that the application is not maintainable. The trial court has also held that it has been held by this Court in the judgment in Linda John Abraham Vs. Business India Group Company & ors. reported in 2010 (4) KLT 706 that the amendment request can be considered only before recording of the plea of the accused and after that stage plea for amendment cannot be allowed, etc. Aggrieved by Anx.A-4 order, the petitioner has preferred revision petition before the Sessions Court, Palakkad. The Sessions Court as per the impugned Anx.A-5 order rendered on 3.9.2015 has also rejected the said plea of the petitioner. The Sessions Court mainly placed reliance on the decision reported in Linda John Abraham Vs. Business India Group Company & ors. reported in 2011 (4) KHC 587 wherein it was held that the amendment which causes serious prejudice to the accused cannot be allowed. However, as regards the plea for correcting the mistake in the averments in the proof affidavit, Sessions Court held that such a plea for amending the proof affidavit, which is nothing but the chief examination of the complainant cannot be considered but that the complainant should be permitted to adduce further evidence to speak out his case as how the mistake occurred and it is for the learned Magistrate to decide the question of admissibility of such evidence and dispose of the case in accordance with law and these orders at Anxs.A-4 and A-5 are under challenge in this Crl.M.C. The petitioner has sought to set aside the impugned orders and for orders from this Court to direct the trial court to allow the said plea for correction/amendment.
(3.)Though notice on this petition has been duly taken out on respondents 2 to 5, said notices were returned with endorsement "refused" and therefore notice to those parties are only to be treated as duly completed. However, there is no appearance for those parties.