IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 15.10.2009 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Revision Petition No.326 of 2009 Bapuji Murugesan ..Petitioner/complainant Versus Mythili Rajagopalan ..Respondent/Accused Petition filed under Sections 379 and 401 of Cr.P.C against the Judgment in Crl.R.C.No.52 of 2008 dated 19.01.2009, passed by the learned V Additional Sessions Judge, Chennai, confirming order made in M.P.No.1935 of 2008 in C.C.No.1046 of 2005 dated 09.04.2008, passed by the learned IX Metropolitan Magistrate, Saidapet, Chennai. For petitioner : Mr.K.F.Manavalan For respondents : Mr.R.Ravi ORDER The revision petitioner herein is the complainant and the respondent herein is the accused in C.C.No.1046 of 2005, on the file of the IX Metropolitan Magistrate, Saidapet, Chennai. The petitioner herein filed a private complaint against the respondent herein for an offence under Section 138 of Negotiable Instruments Act. Pending trial, after cross examination of P.W.1 complainant, the petitioner herein filed a petition to amend the cause title by inserting M/s.Hex Trading-HUF, represented by Karta above the name mentioned as Babuji Murugesan. The said petition was allowed by the learned Magistrate. Against the said order, the respondent herein filed a revision before the Sessions Court in Crl.R.C.No.52 of 2008 and the learned V Additional Sessions Judge, Chennai, set aside the order passed by the learned Magistrate and allowed the revision. Aggrieved by the order of the learned Sessions Judge, the petitioner herein has preferred this criminal revision petition before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2. According to the petitioner herein, though the complaint was filed in the name of Bapuji Murugesan, actually the complaint was filed by the said Bapuji Murugesan only as Karta of Hindu undivided family running the business of Hex Trading. The loan was given to the accused and towards return of the said loan, the cheques were issued by the accused favouring M/s.Hex Trading. In the cross examination, it was suggested by the accused that a wrong person has filed the complaint. Then, in the said circumstance, it had become necessary for the complainant to carryout the amendment of the cause title. 3. According to the respondent herein, complaint was filed only in the individual capacity and not as a Karta of Hindu Undivided Family. The respondent herein executed only a mortgage deed in favour of the petitioner and the petitioner demanded blank cheques as additional security, but the respondent never issued the cheques to M/s.Hex Trading and the accused has no liability towards Hex Trading. 4. The learned Magistrate allowed the petition for amendment on the ground that the accused had admitted about the issuing of the cheques as a security and also admitted the mortgage deed and the cheques were given to 'M/s.Hex Trading' which is the business concern of the Hindu Undivided Family for which the complainant is a Karta. 5. The learned Additional Sessions Judge reversed the order on the ground that the cheques were issued only in favour of 'M/s.Hex Trading' and only after the proceedings of the trial in part and and after cross examination of the witness, the amendment petition was filed belatedly and in the Criminal Procedure Code, there is no specific provision to amend the pleadings of the complaint and the amendment petition should not have been allowed to fill up the lacuna. 6. The learned counsel for the petitioner herein submitted that for the notice issued to the accused under Section 138 of Negotiable Instruments Act, in his reply the accused had admitted about the receipt of Rs.20 lakhs and also about executing the mortgage deed. The petitioner Bapuji Murugesan is the Karta of the Hindu Undivided Family which was running the business in the name of 'M/s.Hex Trading' and the loan was given to the accused only from the fund of the said 'M/s.Hex Trading' and it was only an omission in the complaint to mention that the petitioner is the Karta of Hindu Undivided Family and no prejudice will be caused to the accused by amending the cause title, since the liability had already been accepted by the accused. 7. Per contra, the learned counsel for the respondent submitted that the payment was made by the petitioner only in his individual capacity, the mortgage deed was also executed only in favour of Bapuji Murugesan and not to 'M/s.Hex Trading' and the legal notice https://hcservices.ecourts.gov.in/hcservices/ was also issued by the petitioner only in his personal capacity and not as the Karta of the Hindu Undivided Family or as a sole proprietor of the business 'M/s.Hex Trading'. 8. The learned counsel for the respondent further submitted that as per the cheque, the payee is 'M/s.Hex Trading' and not the petitioner and the petitioner is neither the holder, nor payee nor the holder in due course of the cheque, and as such, the whole complaint has to fall or fail. 9. The learned counsel for the respondent vehemently contended that after the cross examination of P.W.1 and after establishing that there is no legally executable liability from the accused to the holder of the cheque namely 'M/s.Hex Trading', there is no question of amending the cause title of the complaint which is not permissible in law. 10. This Court considered the submissions made by both parties and perused the records. Admittedly, the cheque was drawn in favour of 'M/s.Hex Trading', and the cheque was deposited in the account of 'M/s Hex Trading' which has been returned for "insufficient funds". According to the complainant, at present, 'M/s. Hex Trading' belongs to the Hindu Undivided Family, of which, the complainant Bapuji Murugesan is the Karta of the family. In the complaint filed by the complainant, it is mentioned that the promissory note was executed in favour of the complainant and a mortgage deed was also executed and towards the repayment of loan, the cheques were issued by the accused. Nowhere in the complaint, it is mentioned that the complainant Bapuji Murugesan acted as the Karta of Hindu Undivided Family. According to the accused also, the amount of receiving Rs.20 lakhs has been admitted and issuance of cheques also admitted, but it is stated by the accused that the cheques were given blank only as a security. 11. Before going to the further details of this case, it is to be decided first whether an amendment in the cause title could be made. A complaint in writing is made before the learned Magistrate under Section 190 (1) (a) of Cr.P.C only in order to take cognizance of an offence by Magistrate. On taking cognizance of an offence, on recording the sworn statement of the complainant and recording the statement of the witnesses, if any, and on issuing process to the accused, and after the appearance of the accused, the Court is mainly concerned with the evidence recorded during trial. After evidence being recorded, the Court is not concerned with the particulars mentioned in the complaint, unless it is specifically brought on record of the evidence regarding any omissions or contradictions in the complaint. Therefore, it is true that after filing the complaint, the narration or any other facts mentioned in the complaint, cannot be altered and there is no provision also in the Criminal Procedure Code. At the same time, the criminal procedure https://hcservices.ecourts.gov.in/hcservices/ code also does not say anything about the format of the complaint. The particulars of cause title given in the complaint is only for the purpose of understanding who is the complainant and who is the accused. The said cause title is also to contain other particulars regarding the complainant and the accused. Though there is no specific provision in the Criminal Procedure Code to amend the cause title, it cannot be said that no amendment could be made if any mistake had occurred regarding particulars or any other details given in the cause title. At the same time, the amendment cannot be carried out in the cause title so as to change the structure of complaint or to substitute the main complainant or the accused. A different person even with legal entity cannot be substituted, since the complaint must be subject to the period of limitation. Only in case of death of complainant the legal representatives may be permitted or if the complainant is represented by any person by power of attorney or by any legal entity, the person who is representing the complainant may be substituted with the permission of the Court. 12. In this particular case, the complaint is filed only by Bapuji Murugesan in his individual capacity and even in the body of the complaint as already mentioned, there is no reference to M/s. Hex Trading. Therefore, it is not possible to amend the name of the complainant by changing the main identity of the complainant. 13. For the above said reason, the amendment petition filed by the complainant is not maintainable. But at the same time, this Court observes as follows: The cheque is issued in favour of 'M/s.Hex Trading'. The said Hex Trading is the holder or drawee of the cheque. The question to be decided by the trial Court is that whether there is any executable liability from the accused to M/s.Hex Trading and in such a case, whether Bapuji Murugesan who is the Karta of Hindu Undivided Family to which M/s Hex Trading belongs to, by filing a complaint in his name omitting to mention the name of the Trade would affect the case of the complainant. The learned Magistrate my allow both parties to let in further evidence if any and will decide the issue accordingly. 14. With the above observations, this revision petition is dismissed. Consequently M.P.No.1 of 2009 is closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ ksr To 1. THE V ADDITIONAL SESSIONS JUDGE,CHENNAI 2. -DO- THRO THE SESSIONS JUDGE CHENNAI 3. THE IX METROPOLITAN MAGISTRATE CHENNAI 4. -DO-THRO THE CHIEF METROPOLITAN MAGISTRATE CHENNAI 1 cc To Mr.R.Ravi, Advocate, SR.54495 Crl.R.C.No.326 of 2009 klt(co) SRA(24/10/2009) https://hcservices.ecourts.gov.in/hcservices/