Amendment in criminal complaint under sec. 138 n i act
VINOD VERMA
(Querist) 04 February 2015
This query is : Resolved
a complaint under sec 138 N I Act is filed by the sister concern of the name appearing on the cheque. the notice is rightly sent, but the complaint and affidavit and evidence have been say, the cheque is issued to 'verma overseas' but the advocate filed complaint as 'verma exports', the affidavit and evidence has been lead by partner of the firm 'verma exports, now before the cross examination the complainants advocate moved an application to correct the name to 'verma overseas'
1. can the JMIC allow the amendment, if not any rulings of SCI to this effect
P. Venu
(Expert) 05 February 2015
The discrepancy is much more than a mere error or omission.
Devajyoti Barman
(Expert) 05 February 2015
The error is amenable for correction by way of amendment but the stage is too late now. Anyway the Magistrate has discretion to do so.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 05 February 2015
Mr P Venu is right it is just not a mistake but blunder.
Even DAY ONE advocate will not allow the complaint to be amended.
And most interesting part will be that by your admission of mistake you had filed a false affidavit before a court of law.
It is guidance to all advocates contesting for accused that there are always mistakes and mistakes from complainant , you have to just read every word and sentence. Try to find one and there will be always more than one mistakes.
ajay sethi
(Expert) 05 February 2015
it is doubtful whether amendment of complaint will be allowed at this stage .
Anirudh
(Expert) 05 February 2015
It is simple. One cannot make a criminal complaint against Mr. "A" and then ask Mr. "B" to be tried.
That would be possible, only if there is limitation available to withdraw the complaint against Mr. "A" and to reinstitute a fresh complaint against Mr. "B".
Devajyoti Barman
(Expert) 05 February 2015
Do not get discouraged.
Try your luck anyway.
There is no lack of decision in your support where such mistakes are liberally allowed by court.
Your only place of concern is delay.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 05 February 2015
Mr Devajyoti Barman please enlighten us with few such judgments where the name of complainant has been allowed to be changed.
Rajendra K Goyal
(Expert) 05 February 2015
Amendments may not be allowed at this stage.
T. Kalaiselvan, Advocate
(Expert) 05 February 2015
Even in my opinion, change or amendment of name of the complainant in the complaint already filed may not be permissible because it will alter the entire nature of complaint including cause of action. If there was no legal liability with the complainant by the accused, there is no locus standi for the complaint itself though both the companies may be sister concerns. wait for the court's decision.
prabhakar singh
(Expert) 05 February 2015
The serious point is that a proceeding under section 138 read with section 142 N.I.Act is regulated by Code of Criminal Procedure with only one exception that due to non obstinate clause in N.I Act,a complaint is required to be in writing and it can not be oral.
BUT the Cr.P.C no where lays any rule of amendment that we find in C.P.C.
Then how can we expect courts to legislate rule of amendment in criminal complaints by their judgments.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 06 February 2015
Being an advocate of accused my purpose is to find all the loop holes and win.And all the complainants at least in cheque cases make mistakes in over confidence and careless ness.
On this topic most of the learned experts that is -
P VENU, AJAY SETHI, ANIRUDH, RAJENDRA GOYAL, KALAISELVAN and PRABHAKAR SINGH
have shown basic interpretation of law and its functions for which no citations are needed.
Still contrary views surface even if not maintainable not in this case only but every where. So in similar situation APEX COURT in a recent judgment has said as below=
This Court held as under:
“The term “complainant” is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course)…”
22. Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a “payee” or “holder in due course” of the cheque.
Dr J C Vashista
(Expert) 09 February 2015
@ Dear Learned Advocate Defence,
Please quote the citation for my personal knowledge since I do not have any such authority.
Regards
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 February 2015
You need the citation for PERSONAL KNOWLEDGE , I will give it to you personally since I will be at DELHI next month to defend a high profile cheque case.
Citations are temporary time pass for cheque cases. There are always mistakes, try to find one and there be will be many.
Cheque law is a draconian law since a civil liability has been made criminal so all efforts to save the accused must be appreciated.
Biswanath Roy
(Expert) 10 February 2015
Code of Criminal Proceedure does not sanction and prescribe subject amendment as prayed for. Secondly the Magistrate has no power and competence to allow such amendment.
