Isabella Mariam

The High Court of Kerala Single Bench of Justice Johnson John dismissed a complainant’s appeal in a cheque dishonour matter and declined a related request to amend the cause title at the appellate stage. The complaint alleged that the accused, in connection with the supply of goods, issued a cheque that was returned unpaid for insufficiency of funds and was not paid despite notice. During the appeal, the complainant sought to substitute the payee company as the complainant and to specify the individual representing the accused firm. The Court held that the Code of Criminal Procedure contains no enabling provision for such substitution at the appellate stage, particularly when sought about 27 years after filing of the complaint and dismissed both the amendment application and the appeal.

The criminal appeal arose from a complaint alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881, in relation to dishonour of a cheque issued towards payment for goods supplied. The cheque was drawn in favour of a private limited company engaged in the iron and steel business, of which the complainant was the Managing Director. Upon presentation, the cheque was dishonoured for insufficiency of funds. A statutory notice was issued, followed by a second presentation and a subsequent notice after a second dishonour.

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Before the trial court, the complainant examined one witness and produced documentary evidence. No evidence was adduced by the accused. The trial court acquitted the accused, finding non-compliance with statutory requirements. The complainant challenged the acquittal, contending that a fresh cause of action arose upon the second dishonour and notice. During the appellate proceedings, an application was filed seeking amendment of the cause title to substitute the company as complainant and to specify the identity of the accused partner. The appeal and amendment application were considered together by the High Court.

The Court examined whether a complaint under Section 138 of the Negotiable Instruments Act could be maintained when the cheque was issued in favour of a company but the complaint was filed by its Managing Director in an individual capacity. The Court recorded that “the payee in Exhibit P1 cheque is M/s Steel House (Pvt.) Ltd. But, the complainant is Tenny Jose, Managing Director of Steel House.”

Referring to Section 142 of the Act, the Court observed that “where the payee is a company, the complaint should necessarily be filed in the name of the company and a power of attorney holder or agent cannot file complaint in his personal capacity.” The Court noted the absence of any resolution or authorisation showing that the company had empowered the complainant to institute proceedings on its behalf.

On the issue of repeated presentation of the cheque, the Court took note of the decision in MSR Leathers and recorded that “a prosecution based on a second or successive default in payment of the cheque amount is permissible.” However, it clarified that this principle did not cure defects relating to locus standi of the complainant.

Addressing the amendment sought at the appellate stage, the Court referred to precedent governing amendment of complaints and stated that “there is no enabling provision in the Criminal Procedure Code for entertaining an application for amendment of the complaint.” It further recorded that “the amendment sought for does not relate to a curable infirmity that can be corrected by a formal amendment.”

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The Court directed that the application seeking amendment of the cause title could not be entertained, recording that “the name of the complainant and the accused cannot be substituted at the appellate stage and that the amendment sought for does not relate to a curable infirmity that can be corrected by a formal amendment. Since the amendment sought for is having the effect of substituting the name of the complainant and the accused after 27 years of filing the complaint, I find that the same would cause prejudice to the accused and it cannot be allowed at the appellate stage. As noticed earlier, the trial court took cognizance of the offence against the mandate of Section 142(1)(a) of the N.I Act and therefore, I find that the amendment application and the appeal are liable to be dismissed.

"In the result, Crl. M.A. No. 1 of 2025 and the appeal are dismissed."

Advocates Representing the Parties

For the Appellant/Complainant: Shri. Johnson P. John, Advocate
For the Respondents: Sri. Nidhin Raj Vettikkadan, State Brief; Sri. M.S. Breeze, Senior Public Prosecutor

Case Title: Tenny Jose v. Managing Partner, New Metalised Agency & State of Kerala
Neutral Citation: 2025: KER:97606
Case Number: Crl. Appeal No. 1867 of 2007
Bench: Justice Johnson John