2017 (4) TMI 1615 - HC - Indian Laws

Dishonour of Cheque - insufficiency of funds - tenability of the plea made by the petitioner for correction/amendment of the averments in para 6 of Anx. A-1 complaint - HELD THAT - In the instant case, it is true that the petitioner has averred in para 6 of Anx. A-1 complaint that the cheque in question was issued by A-2. But it can also be seen from Anx. A-6 cheque produced along with Anx. A-1 complaint itself, that the cheque has been issued and signed by one Sri V. Radhakrishnan, and not by A-2, Sri P.V. Sudhakaran. Therefore obviously there was no mischievous intention on the part of the complainant in making the said averment and he had nothing to gain by making such a wrong averment. It was only much later, that the petitioner has came to know about the said mistake. This Court has no hesitation to hold that such a mistake would only be described as a typographical or clerical mistake which was mechanically carried forward even in the proof affidavit filed in lieu of chief examination. The facts dealt with by this Court in Linda John Abraham's case 2013 (2) TMI 572 - HIGH COURT OF KERALA are quite distinct and different from the one dealt with in the present case. In that case accused No. 1 was the company and its Chairman (A-2), Managing Director (A-3) and Director (A-4) were arrayed as accused Nos. 2, 3 4 respectively. The cheque in question was issued and signed by the Chairman (A-2) and the Managing Director (A-3) of the Company. There was no averment in the original complaint that accused No. 4 was in charge of and responsible for the affairs of the conduct of the company. It was much later, an application for amendment was filed before the Criminal Court for introducing an amendment in the averments of the complaint that accused No. 4 was in charge of and responsible for the affairs of the company. This Court has clearly held in Linda John Abraham's case that permitting such an amendment which causes serious prejudice to such an accused is not within the competence of the Criminal Court. Whereas the facts in this case are entirely different. A reading of para 6 of the impugned complaint as well as Anx. A-6 dishonoured cheque, which has been produced along with the complaint itself, would show that the averments in para 6 of the complaint are typographical or clerical mistake. All that the petitioner seeks is for correcting the word 2nd accused appearing in para 6 of the complaint as 4th accused . The petitioner does not even seek to incorporate a new plea that accused No. 4 was in charge of and responsible for the affairs of the business of the company. The impugned orders of both the Courts below to the extent it has refused the petitioner to correct/amend the mistake in para 6 of Anx. A-1 complaint will stand set aside. The trial Court is directed to allow the correction/amendment of para 6 of Anx. A-1 complaint - Application disposed off.

Summary

Issues Involved:
1. Correction/Amendment of averments in the proof affidavit.
2. Tenability of the plea for correction/amendment of averments in the complaint.
3. Legal principles regarding amendments in criminal complaints.
4. Implications of clerical or typographical errors in legal documents.
5. Admissibility of further evidence to explain clerical mistakes.

Issue-wise Detailed Analysis:

1. Correction/Amendment of Averments in the Proof Affidavit:
The petitioner sought correction/amendment of the averments in the proof affidavit, which is the evidence given at the time of chief examination. The court held that there is no question of permitting correction of the evidence given by a party, even if the evidence is rendered on the basis of a proof affidavit. However, the complainant could be permitted to adduce further evidence to explain how the mistake occurred in the affidavit filed in lieu of examination, and it is for the Trial Court to decide the admissibility of such evidence and dispose of the case in accordance with law.

2. Tenability of the Plea for Correction/Amendment of Averments in the Complaint:
The main point was whether the plea for correction/amendment of the averments in para 6 of the complaint was tenable. The petitioner argued that the averment that the cheque was issued by accused No. 2 was a typographical error, as the cheque itself showed it was signed by accused No. 4. The court found that such a mistake could be corrected despite the absence of explicit provisions in the Cr.P.C. The court referred to the judgment in Madhavi v. Thupran, which held that even in the absence of specific enabling provisions, criminal courts have auxiliary power to correct clerical mistakes to prevent miscarriage of justice.

3. Legal Principles Regarding Amendments in Criminal Complaints:
The court discussed various precedents, including the U.P. Pollution Control Board v. Messrs Modi Distillery case, which allowed correction of a technical flaw in the complaint. The court also referred to the judgment in S.R. Sukumar v. S. Sunaad Raghuram, which held that curable legal infirmities could be corrected by formal amendments if no prejudice is caused to the other side. The court emphasized that amendments could be allowed even in the absence of explicit provisions in the Cr.P.C., provided they do not cause serious prejudice to the accused.

4. Implications of Clerical or Typographical Errors in Legal Documents:
The court found that the error in the complaint was a typographical or clerical mistake, which was evident from the dishonoured cheque produced along with the complaint. The court held that such a mistake could be corrected as it does not cause any serious prejudice to the accused and does not change the nature of the complaint. The court distinguished this case from Linda John Abraham v. Business India Group Company & Ors., where the amendment sought was substantial and would have caused serious prejudice to the accused.

5. Admissibility of Further Evidence to Explain Clerical Mistakes:
The court allowed the petitioner to seek permission from the Trial Court to adduce further evidence to explain how the mistake occurred in the proof affidavit. It is for the Trial Court to decide the admissibility of such evidence and dispose of the case in accordance with law.

Conclusion:
The court set aside the impugned orders of the lower courts to the extent they refused the petitioner to correct/amend the mistake in para 6 of the complaint. The Trial Court was directed to allow the correction/amendment. However, the plea for correcting the averments in the proof affidavit was not permitted. The petitioner was given liberty to seek permission to adduce further evidence to explain the mistake, and the Trial Court was to decide the admissibility of such evidence. The accused was also given the liberty to lead necessary evidence to prove that he is not the signatory of the cheque if he has such a plea.