RABINDRA MOHANTY Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, in the revision challenges the order dated 1.10.2011 passed by learned S.D.J.M. Balasore in ICC Case No.504 of 2009 allowing the application to amend the complaint petition. The petitioner is the accused in a proceeding under Section 138 of the Negotiable Instrument Act. The complainant filed the aforesaid ICC case on the allegation that due to previous business relationship, the complainant purchased prawn feed on credit basis. In the said business transaction the accused was liable to pay heavy amount to the complainant. Accordingly, he issued an Account payee cheque on 22.4.2009 of the Central Bank of India, Bhubaneswar Branch to the tune of Rs.5,00,000/- in favour of M/s. Seva Sea Food to meet and discharge the liability. Since the said cheque was returned by the banker with remarks "insufficient of funds" the complainant after following due procedure of law, filed the complaint case. The court below took cognizance of the offence under Section 138 of the N.I.Act on 23.9.2009 and notice was issued to the accused. While the matter stood thus, the complainant filed an application on 10.8.2011 to correct certain statement inadvertently not reflected in the complaint petition and he styled the said application as a petition for amendment and he wanted to insert in the complaint petition that the Proprietor of M/s. Seva Sea Food being a handicapped woman authorized the complainant to file complaint petition. However, the learned Advocate engaged earlier on behalf of the complainant had not reflected the said fact and wanted to furnish the address of the complainant Seva Sea Food situated at Vill/Post Nayapada (Haldipada) P.S. Basta, Dist.Balasore represented by its Manager. On the above explanation he has filed the application and prayed to allow him to carry out the said correction in the complaint petition. In the said petition, the present petitioner filed objection to amend the application on the ground that there is no provision under law to file an amendment application during trial and if the amendment is allowed, the nature and character of the complaint petition will be changed and the same would cause injustice to the accused.

(2.) The court below after hearing learned counsel for the parties and taking into consideration the limited nature of prayer made by the complainant and relying on the decision reported in 1988 CRLJ 1112, 2000 Cr.L.J.1579 (Mad.) allowed the application as the parties had not adduced any evidence by that time and the correction sought for by the complainant is common in nature and no prejudice would be caused to the accused and that correction is necessary for just decision of the case. He has also allowed the said application imposing cost of Rs.200/- to the accused. Learned counsel appearing for the petitioner submitted that there is no provision in the Cr.P.C. to amend a complaint petition. Therefore, the impugned order is liable to be interfered with. In support of his contention he has relied on a decision in the case of Subodh S.Salaskar v. Jayprakash M.Shah & Anr., 2008 AIR(SC) 3086.

(3.) On the other hand, learned counsel for the opp.party submitted that since application for amendment of the complaint petition is formal in nature and the complainant has filed the application to further elucidate the fact already stated in the complaint petition, the court below rightly allowed the same and as cost has been awarded, the accused would be no way prejudiced .He further submitted that the court below has the power to allow such correction in absence of any provision prescribed in the Cr.P.C. in exercise of the ancillary power. In support of his contention he has cited a decision in the cases of Srimati Sabita Sahoo v.Captain Khirod Kumar Sahoo, 1990 1 OrissaLR 402, Smt.Aruna Kar v. Dr.Sarat Dash @ Nachhi, 1992 2 OrissaLR 549.