IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 18211 of 2006(R) -------------------------- CC.361/2006 of J.F.C.M.-I, MAVELIKKARA .................... PETITIONER: --------------- MRS.RENU NINAN, AGED 52 YEARS, W/O.NINAN NINAN,RESIDING AT VADAKKETHALACKAL, THAZHAKARA P.O.,MAVELIKARA. BY ADV. SRI.A.SHAFEEK RESPONDENTS: --------------- 1. M/S.SHIFA HIRE PURCHASE,PUTHIYAKAVU, REPRESENTED BY ITS RECOVERY OFFICER, SURESHKUMAR. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1 SRI.A.R.DILEEP FOR R1 SMT.KAVITHA GANGADHARAN FOR R1 PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 18211/2006 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : PHOTOSTAT COPY OF THE COMPLIANT DATED 9/6/2004 IN C.C.NO. 361/2005 EXHIBIT P2 : PHOTOSTAT COPY OF THE AMENDMENT APPLICATION IN C.C.NO. 361/2005 EXHIBIT P3 : PHOTOSTAT COPY OF THE OBJECTION FILED BY THE PETITIONER IN CRL. M.P.NO. 3724/2006 IN CC NO.361/2005 /TRUE COPY/ P.A. TO JUDGE. vkm THOMAS P. JOSEPH, J. ------------------------------ W.P(c) No. 18211 of 2006 ------------------------------ Dated this the 16th day of October, 2008 JUDGMENT Heard both sides. 2. First respondent filed private complaint against the writ petitioner in the court of learned Judicial First Class Magistrate, Mavelikkara for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). Writ petitioner pleaded not guilty when particulars of offence was read over to him. Thereafter the first respondent filed Exhibit P2, petition for amendment of certain averments in Exhibit P1, complaint claiming that it was a typing error. Learned magistrate vide the impugned order allowed the petition. That order is sought to be quashed in this proceedings. Learned counsel for writ petitioner submitted that the subordinate criminal courts are not vested with any power to order amendment. At any rate, the averment in the complaint sought to be deleted by amendment cannot be described as a typing error. The third contention is that the order under challenge is not a speaking order. Counsel for the first respondent supported the order. W.P(c) No. 18211 /2006 2 3. In para 2 of the complaint (Exhibit P1), first respondent stated that petitioner availed a loan from the first respondent and since he committed default, first respondent recalled the loan with full arrears. In clearance of the debt, petitioner issued cheque bearing number SPO-749664 dated 3/05/2004. Now the prayer made as per Exhibit P2 is to delete the statement beginning from “accused availed a loan from Shifa Company” and ending with the words “in clearance of the” and to add the words “accused in clearance of a legally enforceable” and the word “Ltd” after the name of the first respondent. Learned counsel for first respondent submitted that portions said to be deleted by amendment is only a typing error. 4. It is seen from Exhibit P2 that learned magistrate has not adverted to the objection raised by the writ petitioner (Exhibit P3). Instead, learned magistrate passed an order “ heard allowed carry out”. Learned magistrate has not adverted to the contentions raised on the power of court to order amendment of the nature requested for and whether the amendment sought for in its entirety can be said to be a typing error. As such the order under challenge cannot be sustained. W.P(c) No. 18211 /2006 3 Writ petition is therefore allowed. Matter is remitted to the court of learned magistrate for fresh disposal after taking into account the contentions raised by both sides. Parties shall appear in that court on 5/12/2008. THOMAS P. JOSEPH, JUDGE scm