IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.MC.No. 1359 of 2009(D) ------------------------------------ AGAINST THE ORDER DATED 12/01/2009 IN CMP.6141/2008 IN CC.425/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................................................... PETITIONER(S): ACCUSED ------------------------------------- P.S.AJAYAKUMAR,AGED 42 YEARS,CONTRACTOR, S/O.R.SREEDHARAN,GOVERNMENT CONTRACTOR, CHEPRA.P.O,KOTTARAKKARA,KOLLAM DISTRICT. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SRI.P.P.BIJU RESPONDENT(S): COMPLAINANT ----------------------------------------------- 1. G.CHANDRABABU,SREE DHANY CONSTRUCTION COMPANY,TC 9/875,SASTHAMANGALAM.PO, THIRUVANANTHAPURAM. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. SRI.M.K.CHANDRA MOHANDAS FOR R1 PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1359 of 2009 -------------------------- ORDER Petitioner is the accused and first respondent, the complainant in C.C.No.425/2009 on the file of Judicial First Class Magistrate's Court-V, Thiruvananthapuram. Learned Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments Act. Originally, under Annexure-I judgment, learned Magistrate acquitted the petitioner. First respondent challenged it before this Court in Crl.A.No.161/2002. Under Annexure-II judgment, Annexure-I judgment was set aside and the case was remanded for fresh disposal in accordance with law, permitting both parties to adduce further evidence, if they so choose. After remand C.M.P.No.6141/2008 was filed by the first respondent for allowing to correct the name of the complainant as Sreedhanya Construction Company, represented by its Managing Partner Chandra Babu, CRMC 1359/09 2 instead of Chandra Babu, the original complainant. Under Annexure-III order, learned Magistrate allowed the petition. It is challenged in this petition filed under Section 482 of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner and first respondent were heard. 3. On hearing the learned counsel on both sides, it is clear that while allowing the application, learned Magistrate did not consider all the relevant aspects. Complaint discloses that complainant Chandra Babu is a Government Contractor, who is running a proprietary concern under the name and style 'Sreedhanya Construction Company'. It is the case that amount was due to the said proprietary concern from the petitioner and the cheque issued towards its repayment was dishonoured. Now, the amendment allowed by the Magistrate is changing the complainant from the Proprietor of the proprietary concern to a CRMC 1359/09 3 partnership firm represented by the said proprietor as the Managing Partner of the partnership firm. Learned Magistrate did not consider this aspect and its effect while passing Annexure-III order. In such circumstances, Annexure-III order is quashed. Magistrate is directed to reconsider the application after hearing both parties and pass appropriate order in accordance with law. It is made clear that nothing is expressed on merits of the case. Petition is disposed. 27th July, 2009 (M.Sasidharan Nambiar, Judge) tkv