IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2968 of 2009 DATE:23.09.2010 Between: Smt.Tulasiram and another …… Petitioners And The State of Andhra Pradesh, rep. By Its Public Prosecutor, High Court of A.P. and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.2968 of 2009 ORDER: The petitioners 1 and 2 whose names are introduced in the place of original A-1 and A-2 in C.C. No.254 of 2006 on the file of I Additional Judicial Magistrate of the First Class, Kurnool by order dated 01.02.2007 in Crl.M.P.No.680 of 2007, are questioning the proceedings in the criminal case, in this petition under Section 482 Cr.P.C. The 2nd respondent/complainant filed C.C. No.254 of 2006 in the lower Court originally against Director and Managing Director of M/s.Agradhana Chit Funds (P) Limited, Kurnool alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). The complaint was filed in the lower Court in the year 2006. After receiving summonses, one Sydul Hussain is stated to have appeared for A-1 and A-2 in the lower Court. It is contended by the petitioners’ counsel that the said Sydul Hussain is presently in management of the chit fund company and that the petitioners have resigned their posts in the company. The petitioners did not file any record to show that they have resigned from the company and that the company is now under management of one Sydul Hussain. Admittedly, the petitioners 1 and 2 have signed and issued cheque for Rs.1,07,600/- on behalf of the company to the 2nd respondent/complainant. The said cheque was dishonoured for insufficient funds. Subsequently, statutory notices were issued by the complainant to the Director and the Managing Director of the company by registered post. The registered statutory notices were not addressed to the petitioners 1 and 2 in person describing them as Director and Managing Director of the company respectively. As can be seen from the postal acknowledgement, Sydul Hussain received the notice as Director of the company and not the 1st petitioner. 2) It is contended by the petitioners’ counsel that there is no provision in Cr.P.C for amendment of the complaint and that order dated 01.02.2007 passed in Crl.M.P.No.680 of 2007 is illegal and without jurisdiction. But, in criminal law, always identity of the accused can be gathered or elicited and can be incorporated in either the charge sheet or in the private complaint. It would not amount to adding new accused persons. By the amendment in Crl.M.P.No.680 of 2007, the complainant only specified names of the Director and the Managing Director who have drawn the cheque in his favour. It is no way illegal. 3) At the same time, the complaint cannot be maintained against the petitioners 1 and 2 as there was no statutory notice issued to them prior to filing of the complaint, as contemplated under proviso to Section 138 of the Act. In the absence of statutory notice, the petitioners 1 and 2 cannot be brought on record as accused persons in whatever manner it might have been done. Without a notice under proviso to Section 138 of the Act, there cannot be any cause of action against the petitioners 1 and 2 personally. The cause of action based on the statutory notice issued by the 2nd respondent/complainant is only against the company represented by its Director and Managing Director. In that view of the matter, the amendment ordered by the lower Court in Crl.M.P.No.680 of 2007 by order dated 01.02.2007 is invalid and illegal. 4) In the result, the petition is partly allowed quashing order dated 01.02.2007 passed in Crl.M.P.No.680 of 2007 in C.C. No.254 of 2006 by the I Additional Judicial Magistrate of the First Class, Kurnool. The lower Court is at liberty to proceed with trial of the case as the case stood prior to the said amendment. _______________________________ SAMUDRALA GOVINDARAJULU, J September 23, 2010 KSH