N.i.act
M.C.Chandrasekaran
(Querist) 26 August 2013
This query is : Resolved
complaint filed against a proprietor concern but the owner's named was differed can the complainant make amendment in the complaint before trail
ajay sethi
(Expert) 26 August 2013
you ought to have made proper inquires before issue of notice and filing of complaint . if you have filed complaint against accused and his name is different your complaint would be dismissed . better file summary suit against him .
Advocate Bhartesh goyal
(Expert) 26 August 2013
No provision in Cr.P.C to make amendment in complaint.Better file summary suit as advised by shri Sethi.
Raj Kumar Makkad
(Expert) 26 August 2013
Such minor amendment in the complaint can definitely be inserted.
Nadeem Qureshi
(Expert) 26 August 2013
Dear Querist
regarding amendment in criminal complaint you should read below judgement
Delhi High Court
Hardeep Singh Nagra vs State & Another on 4 March, 2011
Author: Vinay Kumar Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 25.2.2011 Judgment Pronounced on: 4.3.2011
+Crl. M.A. No.2039/2010 in Crl. M.C. No.3200/2009 +Crl. M.A. No.1965/2010 in Crl. M.C. No.3678/2009 +Crl. M.A. No.2037/2010 in Crl. M.C. No.3693/2009 +Crl. M.A. No.1963/2010 in Crl. M.C. No.3694/2009
# HARDEEP SINGH NAGRA .....Petitioner
- versus -
State & Another .....Respondents
Advocates who appeared in this case:
For the Petitioner:Mr. Harpreet Singh, Mr. Kuldip Singh and Mr. Sanjay Bhardwaj, Advs.
For the Respondent:Mr. Janender Kumar Chumbak for R-2.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may Yes be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes in Digest?
V.K. JAIN, J
1. Vide these applications, the applicant is seeking
recall of the order dated 21st January, 2010 whereby the
criminal complaints filed by it, to the extent they pertained
to the petitioner Hardeep Singh Nagra, were dismissed.
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 1 of 18 Criminal complaints under Section 138 of the Negotiable
Instruments Act were filed by the applicant/complainant
M/s Kotak Mahindra Prime Ltd. against Routes Car Rental
Pvt. Ltd. and 3 others, including the petitioner Hardeep
Singh Nagra, who was impleaded as Accused No.4 in the
complaint. It was alleged in para 3 of the complaint that
Accused Nos. 2 and 3 i.e. Sukhdev Dhillon and Syed Akthar
Arshad were the directors of Accused No.1 company and
were officers engaged in day to day affairs of the company.
As regards, the petitioner/accused No.4 Hardeep Singh
Nagra, it was alleged in para 4 of the complaint that he had
given personal guarantee to the complainant for the
repayment of the loan advanced by the complainant
company. The case of the complainant before the learned
Metropolitan Magistrate was that the cheques, which had
been issued to it towards partial discharge of the liability,
when presented to the bank were dishonoured for want of
sufficient funds and the accused persons had failed to make
payment of the amount of the cheques despite notice to
them.
2. When the petitions filed by Hardeep Singh Nagra
were taken up for consideration on 21st January, 2010, no
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 2 of 18 one appeared for the complainant/applicant. This Court
while allowing the petitions, inter alia, observed as under:-
"3. The petitioner committed no
offence punishable under Section 138 of Negotiable Instruments Act, merely by
giving guarantee for the loans taken by accused No. 1 and 2. It is the drawer of the cheque who is liable to punishment in case the cheque used by him towards
discharge in full or in part of a debut or liability, when presented to his bank for encashment, is dishonoured for want of
funds and he fails to make payment
within 15 days of receipt of notice
envisaged in proviso (b) to Section 138 of the Act. There is no allegation in the
complaint that the cheques in question
were drawn by the petitioner. Section 138 of Negotiable Instruments Act does not
fasten any criminal liability on the
guarantor of a loan secured or sought to be paid by way of a cheque, which, when presented to the bank for encashment is dishonoured for want of funds. Of course, the guarantor incurs a civil liability to pay the debt guaranteed by him and his
liability may be joint as well as several, but, he is not liable to be punished under Section 138 of Negotiable Instruments Act.
4. Though learned counsel for the
petitioner fairly conceded that the
petitioner is a Director in M/s Routes Car Rentals (India) Pvt. Ltd which has been arraigned as accused no. 1, there is no averment to this effect in the complaint. If the offence under Section 138 of
Negotiable Instruments Act is committed by a company, every person who is in-
charge of and responsible to the company for conduct of its business, at the time of
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 3 of 18 commission of offence, is also liable to punishment on account of vicarious
liability created by Section 141 of the Act. This is not the case of the complainant that petitioner No.4 was also a person in- charge of and responsible to the company M/s Routes Car Rentals (India) Pvt. Ltd. for conduct of its business. In the absence of such an averment in the complaint it also cannot be said that the petitioner is vicariously liable for the offence committed by the company under Section 138 of the Negotiable Instruments Act on account of dishonor of the cheques issued by it and its failure to make payment even after the receipt of notice from the complainant."
3. It is alleged in the applications under consideration
that though the complainant did not make any averment in
the complaint to the effect that petitioner was incharge of
business and responsible for conduct of the day to day
affairs of the company at the time of commission of offence,
an application for amendment was filed by it in which it was
specifically stated that he was one of the directors of the
company, who was also incharge of day to day affairs of the
company at the time when the cheques were handed over to
the complainant, were presented for payment and were
dishonoured and the learned Metropolitan Magistrate had
taken cognizance only thereafter.
4. A perusal of the record of the trial Court shows
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 4 of 18 that an application was filed by the complainant alleging
therein that the accused No.4 was also one of the directors
of the company, who was also incharge of day to day affairs
of the company at the time when cheques in question were
handed over to the complainant company, were presented
for payment and were dishonoured. A perusal of the order
of learned Metropolitan Magistrate dated 19th March, 2009
shows that the application was considered by him while
taking cognizance and summoning the accused persons. In
his affidavit filed initially by way of evidence, the sole
witness produced by the complainant did not claim that
respondent No.4 was a director of accused No.1 company
and was also incharge of its day to day affairs when the
offence under Section 138 of the Negotiable Instruments Act
was committed. An additional affidavit dated 19th March,
2009 was filed by the complainant, which also finds
mention in the order passed by the learned Metropolitan
Magistrate on that date and was thus considered by him
before taking cognizance. It was averred in the affidavit that
accused No.4 was involved in day to day affairs of accused
No.1 company, when the cheques were issued and
dishonoured.
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 5 of 18
5. The order passed by the learned Metropolitan
Magistrate on 19th March, 2009 does not indicate that
amendment of the complaint sought by the applicant was
allowed by him, though the averments made therein as also
in the additional affidavit filed by the complainant were
considered. In any case, there is no provision in the Code of
Criminal Procedure for amendment of a written complaint
made to the Magistrate. Unlike Code of Civil Procedure, the
Code of Criminal Procedure does not confer any inherent
power on the Magistrate and he can exercise only those
powers, which have been conferred on him under the Code.
6. The question whether amendment of a complaint
can be allowed or not, came to be considered by the
Supreme Court in Subodh S. Salaskar v. Jayprakash M.
Shah & Another, VII (2008) SLT 127. In that case, the
complaint petition was sought to be amended by adding
Section 420 of IPC in the complaint. It was held by the
Court that the Magistrate had no jurisdiction to allow the
amendment of the complaint petition at a later stage.
Similar view was taken by the Kerala High Court in
T.J. Joy. s/o Joseph and Ors. V. Food Inspector and
Anotheri, 2008 Crl. L.J. 4643.
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 6 of 18 In Kunstocom Electronics (I) Ltd. v. Stae of M.P.
& Others, 2002(5) MPLJ 178, Madhya Pradesh High
Court, noticing lack of any provision in the Code of Criminal
Procedure giving right to the parties to file an application for
amendment of pleadings and power to lower Courts to allow
such an application, held that the trial Court committed an
error in entertaining an application for amendment of the
complaint. The Court was of the view that if there was any
misstatement of fact in the complaint because of bona fide
mistake or intention, the same could be explained in the
court statement by the complainant.
7. In Adalat Prasad v. Rooplal Jindal and Others,
(2004(7 SCC 338, Supreme Court held that in the absence
of specific power given to him by the Code, the Magistrate
did not have power to recall the process issued by him
against an accused. The Court did not agree with the
contention that no specific provision of law was required for
recalling an erroneous order and felt that recalling the
process issued against the accused runs counter to the
scheme of the Code, which had not provided for review of
his order by the Magistrate. This view was reiterated by
Supreme Court in Subramanium Sethuraman v. State of
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 7 of 18 Maharashtra and another, (2004) 13 SCC 324.
In Bharat Parikh v. Central Bureau of
Investigation and another, (2008) 10 SCC 109, Supreme
Court held that the Magistrate had no jurisdiction in law to
recall an order framing charge against an accused.
8. In Dharmeshbhai Vasudevbhai and others v.
State of Gujarat and others, (2009) 6 SCC 576, Supreme
Court observed that the Magistrate does not possess any
inherent power.
9. In Ramrajsingh v. State of M.P. and another,
(2009) 6 SCC 729, Supreme Court, inter alia, held as
under:-
"8. To launch a prosecution, therefore, against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction. There should be clear and unambiguous
allegation as to how the Directors are
incharge and responsible for the conduct of the business of the company. The
description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the court can always come to a conclusion in facts of each case. But still in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable."
10. However, there is no legal bar on the Magistrate
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 8 of 18 taking the additional affidavit/evidence of the complainant
before taking cognizance and proceeding against the
accused persons. Section 200 of the Code of Criminal
Procedure provides that a Magistrate taking cognizance of
an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any. Section 2(d)
of the Code of Criminal Procedure, which defines „complaint‟
makes it clear that the complaint can be made orally or in
writing. Therefore, making an oral complaint to the
Magistrate is not prohibited in law. While taking cognizance
and deciding whether there is sufficient ground for
proceeding, the Magistrate needs to take into consideration
not only the averments made in the written complaint made
to him, but also the statement made by the complainant
and his witnesses before him under Section 200 of the Code
of Civil Procedure. If the complainant has omitted some
facts from the written complaint, nothing in law prevents
him from including those facts in his statement to the
Magistrate. The Magistrate is duty bound to consider those
factual averments even if they are not contained in the
written complaint made to him. Therefore, while passing
the order dated 19th March, 2009, the learned Metropolitan
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 9 of 18 Magistrate has rightly taken the additional affidavit filed by
the complainant by way of evidence, into consideration.
11. The main issue, which comes up for consideration
in this case, is whether the averments made in the
additional affidavit filed by the complainant disclose
commission of offence under Section 138 read with Section
141 of the Negotiable Instruments Act.
12. In N.K. Wahi vs. Sekhar Singh & others (2007)
9 SCC 481, the Hon‟ble Supreme Court, inter alia, held as
under:-
"5. To launch a prosecution, therefore, against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction. There should be clear and unambiguous
allegation as to how the Directors are
incharge and responsible for the conduct of the business of the company. The
description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the court can always come to a conclusion in facts of each case. But still in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable."
13. In K.K. Ahuja vs. V.K. Vora and Anr., 2009 (3)
JCC (NI) 194, the appellant before the Hon‟ble Court had
impleaded 9 persons as accused. They included, the
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 10 of 18 company, its Chairman, four Directors, Vice-President
(Finance), General Manager and Deputy General Manager. It
was alleged in the complaint that "at the time of the
commission of offence, accused 2 to 9 were in-charge of and
responsible for the conduct of day to day business of
accused No. 1" and therefore they were deemed to be guilty
of offence under Section 138 read with Section 141 of the
Act and Section 420 of the Indian Penal Code. The appellant
also alleged that "respondents 2 to 9 were directly and
actively involved in the financial dealings of the company"
and that the accused had failed to make payment of the
cheques which were dishonoured. In the pre- summoning
evidence, the appellant "reiterated that accused 2 to 9 were
responsible for the conduct of day to day business of first
accused company at the time of commission of offence".
The Supreme Court, after considering its earlier
decisions on the subject, inter alia, observed as under:
"The prevailing trend appears to require the complainant to state how a Director who is sought to be made an accused,
was in charge of the business of the
company, as every director need not be
and is not in charge of the business of the company. If that is the position in regard to a director, it is needless to emphasise that in the case of non-director officers,
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 11 of 18 there is all the more the need to state what his part is with regard to conduct of
business of the company and how and in
what manner he is liable."
On the question as to who would be persons
responsible to the company for conduct of its business, the
Court inter alia held as under:
"A company though a legal entity can act only through its Board of Directors. The settled position is that a Managing
Director is prima facie in charge of and responsible for the company's business
and affairs and can be prosecuted for
offences by the company. But insofar as other directors are concerned, they can be prosecuted only if they were in charge of and responsible for the conduct of the
company's business. A combined reading
of Sections 5 and 291 of Companies Act, 1956 with the definitions in clauses (24), (26), (30), (31), (45) of Section 2 of that Act would show that the following persons are considered to be the persons who are
responsible to the company for the conduct of the business of the company :
(a) the managing director/s;
(b) the whole-time director/s;
(c) the manager;
(d) the secretary;
(e) any person in accordance with whose directions or instructions the Board of directors of the company is accustomed to act;
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 12 of 18 (f) any person charged by the Board with the responsibility of complying with that provision (and who has given his consent in that behalf to the Board); and
(g) where any company does not have any of the officers specified in clauses (a) to (c), any director or directors who may be
specified by the Board in this behalf or where no director is so specified, all the directors."
"15. Section 141 uses the words "was in charge of, and was responsible to the
company for the conduct of the business of the company". It is evident that a person who can be made vicariously liable under Sub-section (1) of Section 141 is a person who is responsible to the company for the conduct of the business of the company
and in addition is also in charge of the business of the company..."
"....The meaning of the words "person in charge of the business of the company"
was considered by this Court in Girdhari Lal Gupta v. D.N. Mehta [1971 (3) SCC
189] followed in State of Karnataka v.
Pratap Chand [1981 (2) SCC 335] and
Katta Sujatha v. Fertiliser & Chemicals Travancore Ltd. [2002 (7)SCC655] . This Court held that the words refer to a person who is in overall control of the day to day business of the company. This Court
pointed out that a person may be a
director and thus belongs to the group of persons making the policy followed by the company, but yet may not be in charge of the business of the company; that a
person may be a Manager who is in
charge of the business but may not be in overall charge of the business; and that a person may be an officer who may be in
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 13 of 18 charge of only some part of the business.
16. Therefore, if a person does not
meet the first requirement, that is being a person who is responsible to the company for the conduct of the business of the
company, neither the question of his
meeting the second requirement (being a person in charge of the business of the company), nor the question of such person being liable under Sub-section (1) of
Section 141 does not arise. To put it
differently, to be vicariously liable under Sub-section (1) of Section 141, a person should fulfill the 'legal requirement' of being a person in law (under the statute governing companies) responsible to the company for the conduct of the business of the company and also fulfill the 'factual requirement' of being a person in charge of the business of the company."
"(iii) In the case of a Director, Secretary or Manager (as defined in Section 2(24) of the Companies Act) or a person referred to in clauses (e) and (f) of Section 5 of
Companies Act, an averment in the
complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1). No further averment would be
necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating
to consent and connivance or negligence, in the complaint, to bring the matter under that Sub-section".
14. In the cases before this Court, this is not the case
of the complainant in the additional affidavit filed by it that
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 14 of 18 the petitioner Hardeep Singh Nagra was the Managing
Director, Joint Managing Director or a whole time director of
the accused company. Therefore, the petitioner is not one of
the persons who falls under the category of "persons who
are responsible to the company for the conduct of the
business of the company", listed in the above quoted para of
the judgment. Therefore, even if it is stated that he was
incharge of the business of the company or that he was
incharge of day to day management of the company or that
he was incharge and responsible to the company for
conduct of the business of the company that by itself would
not make him vicariously liable under Sub-section (1) of
Section 141 of the Negotiable Instruments Act. In the
additional affidavit filed by the complainant on 19th March,
2009, there is no averment that the petitioner Hardeep
Singh Nagra was incharge of the business of Routes Car
Rental Pvt. Ltd. There is no averment in this affidavit that
he was incharge of day to day management of the company.
There is no averment that he was incharge of and
responsible to the company for conduct of the business of
the company. The only averment made against him is that
he was also one of the directors of accused No.1 company,
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 15 of 18 who was engaged in day to day affairs of the company.
Being engaged in day-today affairs of the company is
altogether different from being incharge of the business of
the company or being responsible to the company for the
conduct of its business or even being incharge of day to day
management of the company. The applicant/complainant
was required to meet the twin requirement of Section 141 of
the Act firstly by alleging that the petitioner was a person
responsible for business of the company and secondly by
alleging that he was incharge of the business of the
company. Neither of these two ingredients is made out from
the bald averment that he was engaged in day to day affairs
of the company. Being engaged in day-today affairs of the
company does not make a person incharge of those affairs
since more than one person can be involved in conducting
day to day affairs of the company and everyone of them
cannot be said to be incharge of the business of the
company or of its day to day affairs.
15. In Nitin Kumar and others v. NCT of Delhi
through its Standing Counsel and another, 2010(1) JCC
[NI] 9, it was found that the complainant had generally
alleged in the plaint that the accused had been actively
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 16 of 18 involved in the affairs of accused No.1. Noticing that there
was no allegation in the complaint that the petitioner was in
overall control of the day to day business of the company
nor are there any such factual averment from which such a
control could be inferred nor there was any allegation in the
complaint that the petitioner was party to any decision to
issue cheque in question or to get it dishonoured, it was
held by this Court that the case could not be brought within
the purview of sub-Section 2 of Section 141 of the
Negotiable Instruments Act.
In the cases before this Court, there is no
allegation either in the complaint or in the affidavit filed by
the complainant that the petitioner Hardeep Singh Nagra
was party to a decision to issue the cheques which, when
presented to the bank, were dishonoured or to get those
cheques dishonoured. Admittedly, none of the cheques was
signed by him. There is no averment in the complaint that
the cheques were issued and then dishonoured with the
consent or connivance of the petitioner or that the same was
attributable to any negligence on his part. Therefore, the
case against the petitioner cannot be brought within the
purview of sub-Section (2) of Section 141 of the Negotiable
Crl. M.C. Nos. 3693/2009, 3200/2009, 3678/2009 and 3694/2009 Page 17 of 18 Instruments Act.
For the reasons given in the preceding paragraphs,
I see no good reason to recall the order dated 21 st January,
2010. The applications are devoid of any merit and are
hereby dismissed.
(V.K. JAIN)
JUDGE
MARCH 04, 2011
Raj Kumar Makkad
(Expert) 26 August 2013
Force of judgment is not required for such petty change/correction. Procedural law allows such changes.
Anirudh
(Expert) 27 August 2013
I am not sure what procedural law that Mr. Makkad is talking about.
We are here about lodging of the complaint (within limitation) against a particular accused.
If the complaint is lodged within time, but the name of the accused is wrongly mentioned, then the particular accused would escape.
If the name of the accused is to be corrected, then the complaint would be treated as lodged afresh, and no such complaint can be filed without issuance of a statutory notice etc. Therefore I am totally at a loss to know as to how Mr. Makkad says that the matter involves only minor procedural law.
Guest
(Expert) 27 August 2013
Basically, what I find, the query of Mr. Chandrasekaran in itself becomes the cause of confusing and contradictory replies by experts. He should have made a mention, whether the cheque was issued from a private account or from a firm's account by the defendant and also for what purpose.
As a matter of principal, in the absence of the real and adequate background, his query becomes merely an academic query.
However, the offence being of criminal nature mention of correct offender was quite necessary. Naming a wrong person means the case is lost from the very initial stage.
Raj Kumar Makkad
(Expert) 28 August 2013
The querist has indicated that the cheque was issued by firm or say it was presumed and if the complainant could not know the exact name of the properietor which he came to know at later state then court can allow it.
