Criminal Misc. No. 17426-M of 2007. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. 17426-M of 2007. Date of Decision: March 29, 2007. M/s Sursangam Electronic & Anr. ....Petitioners through Mr. B.L.Gulati, Advocate Versus M/s Whirlpool of India Limited . ...Respondent CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? SURYA KANT,J.(ORAL) In this petition under Section 482 Cr.P.C., the petitioners seek quashing of an order dated 25th October, 2004 passed by the learned Judicial Magistrate Ist Class, Faridabad whereby they have been summoned to face trial in a Criminal Complaint under Section 138 of the Negotiable Instruments Act, 1881. The petitioners also impugn the order dated 13th January, 2007 passed by learned Additional Sessions Judge, Faridabad, dismissing their revision petition against the aforementioned order of the learned Judicial Magistrate. [2]. The facts may be briefly noticed. [3]. M/s Whirlpool of India Limited – the respondent Criminal Misc. No. 17426-M of 2007. ::-2-:: complainant had originally instituted a complaint under Section 138/142 read with Section 141 of the Negotiable Instruments Act (for short `the Act') and Section 420 IPC against M/s Sursangam Electronics through its Proprietor – Bipan Shah inter-alia alleging that the complainant had supplied goods to the afore-stated accused and towards part-payment of the outstanding dues, the accused (Bipin Shah) in his capacity as proprietor of M/s Sursangam Electronics, had issued an account-payee cheque bearing No. 433905 dated 31st January, 2003 for a sum of Rs.2,52,049.91. However, upon presentation, the said cheque was dishonoured by the Bank of the accused vide memo dated 10th February, 2003 for want of sufficient funds. Thereafter, the respondent-complainant sent a notice dated 24th February, 2003 calling upon Bipin Shah to make payment of the bounced cheque within 15 days of the receipt thereof. However, no such payment having been received, the aforesaid Criminal Complaint, a copy of which has been appended as Annexure P-1, was filed. [4]. It appears that upon being summoned, Bipin Shah, who was also impleaded in his individual capacity as accused No. 2 in the complaint, moved an application to recall the order of his summoning on the plea that the cheque in question dated 31st January, 2003 was signed by Panna B.Shah and not by him and, therefore, he could not have been impleaded or summoned. The learned Judicial Magistrate, vide his order dated 7th May, 2003 (Annexure P-3) allowed the said application and held that since the accused firm “is not a Company and as such Section 141 of the Act being inapplicable, no criminal liability could be attracted against the Criminal Misc. No. 17426-M of 2007. ::-3-:: accused Bipin Shah”. He was accordingly discharged. [5]. Thereafter, the respondent-complainant filed an “amended complaint” (Annexure P-4) wherein the accused firm, namely, M/s Sursangam Electronics was impleaded through “Mrs. Panna B.Shah” who has also been impleaded in her individual capacity as accused No.2. Vide order dated 25th October, 2004 (Annexure P-5), the learned Judicial Magistrate, upon consideration of the preliminary evidence led by the respondent-complainant, summoned Smt. Panna B.Shah as well as the accused firm. [6]. Aggrieved at their summoning, the petitioners preferred a criminal revision which has, however, been turned down by the learned Additional Sessions Judge vide his impugned order dated 13th January, 2007 (Annexure P-6). [7]. Still aggrieved, the petitioners have invoked the jurisdiction of this Court under Section 482 Cr.P.C. [8]. In support of the prayer, learned counsel for the petitioners vehemently contends that (i) there is no provision in the Cr.P.C. to permit “amendment” of a criminal complaint, therefore, the amended complaint could not have been entertained by the learned Judicial Magistrate; (ii) on the date of its filing, a complaint under Section 138 of the Act, on the basis of alleged bounced cheque dated 31st January, 2003, was barred by limitation; (iii) no statutory notice in terms of Section 138[b] and [c] of the Act was ever served upon Smt. Panna B.Shah, therefore, also the complaint is not maintainable; (iv) in fact, there is no formal order allowing 'amendment' of the complaint, therefore, also no cognizance thereof could have been taken. Criminal Misc. No. 17426-M of 2007. ::-4-:: [9]. Learned counsel has also placed reliance upon a judgment of the Hon'ble Supreme Court in the case of M/s Prem Chand Vijay Kumar v Yash Pal Singh & Anr. 2005(2) RCR (Crl.), 872; a judgment of the Andhra Pradesh High Court in the case of Parveen Kumar and Anr. V Sri Balaji Onion Co. & Ors., 2005(3) RCR (Crl.), 38 and a judgment of the Bombay High Court in the case of Behram S. Doctor v State of Maharashtra, 2004(1) RCR (Crl.), 525. [10]. I have heard learned counsel for the petitioners and after going through the impugned orders, I do not find any merit in either of the contentions. Firstly, it may be noticed that the cheque in question dated 31st January, 2003 (Annexure P-2) was issued for and on behalf of M/s Sursangam Electronic which was impleaded as Accused No. 1 in the original complaint also (Annexure P-1). Admittedly, the aforesaid cheque, upon presentation, was dishonoured by the Bank of M/s Sursangam Electronic for want of “sufficient funds”. There is also no denial of the fact that the original complaint was filed by the respondent well within the period of limitation and after serving a legal notice in terms of Section 138[b] and [c] of the Act. [11]. Mr. Bipin Shah and Smt. Panna B.Shah are husband and wife respectively. Having regard to the fiduciary relationship enjoyed upon by them and the specific plea taken by the complainant that both of them have been looking after the affairs of the proprietorship firm – M/s Sursangam Electronic, the Revisional Court appears to be right in observing that initial impleadment of the husband or of the Criminal Misc. No. 17426-M of 2007. ::-5-:: wife in the amended complaint was a curable defect and the learned trial Court possesses inherent powers to permit to remove such defects. It was neither a case of revival of the `cause of action' nor of `introduction' of new facts. Similarly, the preliminary evidence led by the complainant does reveal that a legal notice was served upon M/s Sursangam Electronic which was duly received by the person, namely, “Shah”. Whether the said notice was served upon petitioner No.2 or her husband, is a debatable question of fact and will have to be gone into on the basis of the evidence to be led by the parties. No final opinion in relation thereto is required to be formed at this stage. [12]. Similarly, the plea that at the time when the “amended complaint” was filed, a compliant under Section 138 of the Act was barred by limitation against petitioner No.2, appears to be legally misconceived. Under Section 468(c) Cr.P.C., the Court can take cognizance of an offence within a period of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. After the amendment of Section 138 of the Act w.e.f. 17th December, 2002, an accused can be sentenced to undergo imprisonment for a period of two years, i.e., exceeding one year but not exceeding three years. The limitation to file a criminal complaint in such like cases, therefore, may be three years. The “amended complaint” filed on 25th October, 2004 being within a period of less than two years from the date of issuance of the cheque dated 31st January, 2003, prima facie, appears to be well within limitation. [13]. The Supreme Court in M/s Prem Chand Vijay Kumar's Criminal Misc. No. 17426-M of 2007. ::-6-:: case (supra) summarized the basic facts which are required to be brought on record to prove an offence under Section 138 of the Act which includes giving a notice in writing to the drawer within the stipulated period. As noticed earlier, as per the preliminary evidence led by the complainant, a legal notice was duly served upon M/s Sursangam Electronic which was received by one “Shah”. [14]. In Parveen Kumar's case (supra), a learned Single Judge of Andhra Pradesh High Court has held that since the proprietary concern is neither the association of individuals or a partnership nor a company, the person who did not sign the cheque is not liable for prosecution. It is the case of the petitioners themselves that the cheque in question was signed by petitioner No.2. [15]. In Behram S.Doctor's case (supra), a learned Single Judge of Bombay High Court has held that there is no provision in the Cr.P.C. to allow amendment of a Criminal Complaint in order to delete name of the accused and substitute it by another. That was a case where the complaint under Section 138 of the Act was filed prior to the amendment dated 17th December, 2002. At that time, limitation to file the complaint was one year only. Originally, the complaint in that case was filed against one B.S.Dastur. However, an amendment of the complaint was allowed after a period of three years of its filing whereby in place of B.S.Dastur, Behram S.Doctor was substituted as an accused. Since on the basis of the admitted facts on record, the complaint was barred by limitation, the proceedings arising therefrom were rightly quashed by the learned Single Judge. [16] However, the expressions “amendment” and “substitution Criminal Misc. No. 17426-M of 2007. ::-7-:: of a party” are not synonymous. Every Court possesses inherent powers to permit correction of any error provided that it does not change the substance or nature of the matter. In addition, Section 319 (1) Cr.P.C. provides that where, in the course of an inquiry into or trial of an offence, it appears to the Court that a person, who is not being accused, had actually committed the offence, for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he is alleged to have committed. [17]. The learned Judicial Magistrate could have, thus, summoned the petitioner No.2 even without refusing to discharge her husband. [18]. For the reasons aforementioned, I do not find any merit in this petition which is accordingly dismissed, however, with liberty to the petitioners to raise all the issues before the trial Court at an appropriate stage and the same shall be gone into in accordance with law and without being influenced with the observations made in the order. March 29, 2007. ( SURYA KANT ) dinesh JUDGE