IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1345 of 2001() ------------------------------ AGAINST THE ORDER DATED 28/08/2001 IN MP. 11202 /2001 IN CC.1039/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S)/RESONDENT/COMPLAINANT: --------------------- M/S.EFFICIENT MARKETING PVT. LTD., ADMINISTRATIVE OFFICE, CRYPTMS HOUSE, 39/5896, PARAMBITHARA CROSS ROAD, ERNAKULAM, COCHIN 36, REP. BY ITS ADMINISTRATION MANAGER & POWER OF ATTORNEY HOLDER MR.U.K.NAIR. BY ADV. SRI.ALEXANDER PETER SRI.LIJU. M.P RESPONDENT(S)/FIRST RESPONDENT/ACCUSED: --------------- 1. M.K.ABDUL WAHAB @ MR.M.K.YOOSUF HAJI, MANAGING PARTNER, M/S.M.K.YOOSUF HAJI & CO, RESIDING AT HOUSE NO.5/1758 FATHIMA MANZIL, ST. VINCENT COLONY, CALICUT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.GOPALAKRISHNA KURUP FOR R1 PUBLIC PROSECUTOR SHRI AMJAD ALI FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1345 of 2001 -------------------------------------- Dated this the 18th day of December, 2008. ORDER Order passed by the leaned Additional Chief Judicial Magistrate, Ernakulam in C.M.P.No.11202 of 2001 in C.C.No.1039 of 1998 is under challenge in this revision at the instance of the complainant. 2. Heard both sides. 3. Point for consideration is whether the order under challenge is legal and proper? 4. Perused records. 5. Point. Revision petitioner filed a complaint against one M.K.Yoosuf Haji, managing partner, M/s.Yoosuf Haji and company, Calicut for offence punishable under Section 138 of the Negotiable Instruments Act (for short, ‘the Act’). According to the revision petitioner/complainant, cheque issued by the said person in his capacity as managing partner of M/s.Yoosuf Haji and company was dishonoured for insufficiency of funds, a notice intimating dishonour was issued to the drawer of the cheque and served on him. He replied admitting due execution of the cheque but claiming that it was given as security. Learned Additional Chief Judicial Magistrate issued summons to the accused but it was returned. That was followed by non bailable warrant. Warrant was returned with Crl.R.P.No.1345/2001 2 Annexure-E report that on enquiry it was revealed that 'M.K.Yoosuf Haji' cited in the complaint as accused in his capacity as managing partner of M/s.Yoosuf Haji and company had expired about 20 years back. Thereon, revision petitioner filed C.M.P.No.11202 of 2001 to correct name of the accused as M.K.Abdul Wahab, S/o. late M.K.Yoosuf Haji, managing partner of M/s.Yoosuf Haji and Company. In that petition, revision petitioner stated that managing partner of M/s.Yousef Haji and company is the said M.K.Abdul Wahab but due to an inadvertent mistake, name of accused was given in the complaint as 'M.K.Yoosuf Haji' who is the father of M.K.Abdul Wahab. It is further stated that revision petitioner learnt the mistake only when non bailable warrant was attempted to be executed. Revision petitioner placed reliance on the decision in Ninan v. Rufus Olivero (1994 (1) KLT 984) to contend that it was within the power of learned Additional Chief Judicial Magistrate to permit correction as prayed for. Learned Additional Chief Judicial Magistrate however, distinguished that decision since in that case, complaint was preferred against an accused who was alive whereas in this case, person named as accused in the complaint had expired about 20 years before filing of the complaint, there was nothing to show that the accused was 'M.K.Abdul Wahab', cheque was issued by M.K.Yoosuf Haji and notice was issued and served on him and dismissed the application. Aggrieved, revision petitioner/complainant filed the revision. Learned counsel contends that the view taken by the learned Additional Chief Judicial Magistrate is erroneous. 6. In this revision, first respondent is M.K.Abdul Wahab, the name Crl.R.P.No.1345/2001 3 sought to be incorporated in the complaint by way of correction as per C.M.P.No.11202 of 2001. Counsel for first respondent contended that first respondent had nothing to do with the proceeding in the trial court and that first respondent never got any notice of dishonour, nor did he cause any reply to be issued. It is also contended that first respondent is not even a necessary party in the revision. Further contention is that the explanation offered by the revision petitioner that it was by an inadvertent mistake complaint was preferred against 'M.K.Yoosuf Haji' is unsustainable. According to learned counsel for first respondent, complaint having been filed against a dead person, learned Additional Chief Judicial Magistrate was justified in holding that it is not maintainable. 7. After having heard counsel on both sides and going through the records what I am able to understand is that it is not as if revision petitioner wanted to proceed against 'M.K.Yoosuf Haji' but, he wanted to proceed against the managing partner of M/s.Yousef Haji and Company whose name revision petitioner thought, is 'M.K. Yoosuf Haji'. But now, according to him he learnt that he was under a mistake and that real name of the managing partner against whom he wanted to proceed, is 'Shri M.K.Abdul Wahab'. It is in that view correction was sought for. This is not a case of wrong identity of the person sought to be prosecuted but a wrong description of his name. Understanding the contention of revision petitioner in that way, I am not be able to subscribe to the view of learned Additional Chief Judicial Magistrate that complaint was preferred against a dead person. In the decision relied on by Crl.R.P.No.1345/2001 4 learned counsel for revision petitioner, permission was granted to correct an inadvertent mistake in mentioning the name of offender. Though a provision like Order VI Rule 17 of Code of Civil Procedure is not available in the Code of Criminal Procedure and though inherent power saved under Section 482 of that Code is not available to the subordinate criminal courts, this Court has consistently held that it is within the power of the subordinate criminal courts also to allow correction of proceedings for the ends of justice. I am inclined to think that this is a case where learned Additional Chief Judicial Magistrate should have permitted correction of the name as prayed for. I make it clear that I am not going into the question whether M.K.Abdul Wahab was managing partner of the firm referred to in the complaint, whether he had issued cheque, received any notice or had caused any reply to be sent. As such, order under challenge is liable to be set aside. Resultantly, this revision petition is allowed. Dismissal of C.M.P.No.11202 of 2001 is set aside and that petition will stand allowed. Learned Additional Chief Judicial Magistrate will permit revision petitioner to correct the name of accused in the complaint as prayed for. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.1345/2001 5 Thomas P.Joseph, J. Crl.R.P.No.1345 of 2001 ORDER 18th December, 2008