High Court

Legal Reasoning

1 910-CrWP-368-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 368 OF 2024TAURUS AUTO DEALERS PVT. LTD C/O DIRECTOR RAJIV MALVIYAVERSUSY.V.Z. MOTORS PVT. LTD. G.P.A. HOLDER MAHESH VINOD ZAWERI...Mr. Mangesh G. Patil, Advocate for the PetitionerMr. A.A. Joshi, Advocate h/f Mr. S. V. Natu, Advocate for Respondent... CORAM : NITIN B. SURYAWANSHI, J.DATE : 23rd APRIL, 2024PER COURT : 1.This petition filed under Article 227 of Constitution ofIndia, takes exception to the order dated 29/01/2024, passed bylearned Judicial Magistrate First Class, Aurangabad, below Exhibit-64in S.C.C. No.1250/2017.2.Respondent has filed complaint under Section 138 ofNegotiable Instruments Act, against petitioner contending thatrespondent was dealer of Ford Motor Company and a Ford Vehiclewas sold to petitioner company. Towards consideration amount /payment of the vehicle, cheque of Rs.9,29,033/- was issued bypetitioner to respondent. On presentation, said cheque wasdishonored, hence, demand notice was issued, which was notreplied by petitioner. Hence, respondent filed S.C.C. No.1250/2017,through General Power of Attorney holder–employee MaheshZaweri. His evidence affidavit was filed on 21/12/2018. SinceSVH 2 910-CrWP-368-24.odtpetitioner failed to cross-examine him ‘no cross’ order was passedagainst petitioner on 18/02/2019, which was set aside at theinstance of petitioner on 18/11/2019. Thereafter, since MaheshZaweri left respondent company, respondent sought time for filingevidence affidavit of another employee Padmakar Mahajan. He tooleft respondent company and hence, respondent filed evidenceaffidavit of Harshwardhan Yogesh Zaweri on 29/01/2020. Petitionerfailed to cross examine Harshwardhan Zaweri. Hence, ‘no cross’order was passed against petitioner on 04/07/2021. Again, at theinstance of petitioner, on 08/08/2023 said order was set aside bythe trial Court.3.Respondent then filed application seeking permission toamend the complaint stating that complaint was filed by MaheshVinod Zaweri and due to technical and official problem MaheshZaweri is unable to attend Court proceedings, due to which Y.V.Z.Motors authorised Padmakar Mahajan to attend court proceedingson behalf of it. Thereafter Padmakar Mahajan was also unable toattend court proceedings, hence, Y.V.Z. Motors passed resolution on19/09/2019 and authorised Harshwardhan Zaweri for courtproceedings. Harshwardhan Zaweri filed evidence affidavit on29/01/2020 at Exhibit-49, which is ordered to be read and recordedby the Court. Harshwardhan Zaweri is ready to proceed with thecase till its disposal. Hence, necessary amendment may beSVH 3 910-CrWP-368-24.odtpermitted to be made in the complaint.4.Petitioner opposed said application contending that theapplication is not maintainable and complainant has filed evidenceaffidavit of three different persons without permission of the Court.As per criminal procedure amendment is not acceptable and hence,application be rejected.5.Trial Court has allowed the application holding that newauthority is given to Harshwardhan Zaweri and he is ready todepose before the Court on behalf of complainant, no prejudice willbe caused to accused as they have chance to cross-examinewitness. Since complainant has changed his authority, trial Courthas allowed the application in the interest of justice. This order isimpugned by the petitioner.6.Heard learned advocate for petitioner and learnedadvocate or respondent. Perused the memo of writ petition alongwith documents annexed thereto.7.Learned advocate for petitioner submits that seriousprejudice will be caused to petitioner if Harshwardhan Zaweri ispermitted to depose on behalf of complainant. Amendment as isallowed by the trial Court is not in consonance with the settled legalposition. Hence, the impugned order cannot be sustained. Insupport of his contention, he placed reliance on Suman Devi Vs.SVH 4 910-CrWP-368-24.odtChhatarpal, LAWS(P&H)-2023-1-218 and S.R. Sukumar Vs. S.Sunaad Raghuram, (2015) 9 SCC 609.8.Learned advocate for respondent, on the other hand,supported the impugned order by relying on Amol Shripal ShethVs. Hari Om Trading Co. and Other, 2014 (6) Mh.L.J. 222.9.Undisputably complaint under Section 138 is filed in thename of company i.e. Y.V.Z. Motors Pvt. Ltd, through G.P.A. holderMahesh Vinod Zaweri, as company at that point of time authorisedhim to represent it, in the complaint. It appears that since MaheshZaweri has left the company, so also, Padmakar Mahajan, thecompany has now authorized Harshwardhan Zaweri to prosecutecomplaint on it’s behalf.10.It is a matter of record that Mahesh Zaweri has filedevidence affidavit on 21/12/2018 and ‘no cross’ order was passedagainst petitioner on 18/02/2019, which is set aside on 18/11/2019.Thereafter, though time was sought by respondent company to fileevidence affidavit of Padmakar Mahajan, the same could not be filedas even Padmakar Mahajan has left the company. In this backgroundHarshwardhan Zaweri was authorized to represent respondentcompany in the proceedings and he has filed evidence affidavit on29/01/2020, at that time no objection was raised by petitioner. Aspetitioner failed to cross-examine said witness, ‘no cross’ order wasSVH 5 910-CrWP-368-24.odtpassed against petitioner on 04/07/2023. Said order was set asideat the instance of petitioner on 08/08/2023. Thereafter, respondenthas filed amendment application at Exhibit-64. Merely because atearlier point of time evidence affidavit was filed by different personauthorized by the company, it does not preclude the company fromauthorising another person to represent it in a complaint filed underSection 138 of N.I. Act.11.No prejudice is likely to be caused to petitioner asHarshawardhan Zaweri would be deposing in tune with complaintfiled by respondent complainant and petitioner will be having rightto cross-examine him. Therefore, there is no substance in thecontention of petitioner that serious prejudice will be caused topetitioner if amendment thereby authorizing Harshvardhan Zawerito prosecute complaint is permitted to be made.12.Decision in S.R. Sukumar (supra) is on the point ofamendment in criminal complaint filed under Section 190 of Cr.P.C.It is held that although there is no specific provision in Cr.P.C. toamend a complaint or a petition filed under Cr.P.C., if amendmentsought to be made relates to a simple infirmity which is curable bymeans of a formal amendment and by allowing such amendment noprejudice would be caused to the other side, Court may permit suchamendment to be made. It is well settled that proceedings underSection 138 of N.I. Act, is quasi civil and the amendment which isSVH 6 910-CrWP-368-24.odtsought by respondent and permitted by the trial Court, does notfundamentally change the allegations in complaint.13. Decision in Suman Devi (supra) is rendered indifferent facts and therefore, is of no help to the case of petitioner.14.Reliance of learned advocate for respondent in AmolShripal Sheth (supra) is well placed. In the said ruling learnedSingle Judge of this Court has held that magistrate has incidentaland ancillary power to main power of taking cognizance of offenceto allow such amendment. No case is made out by petitioner toexercise extraordinary writ jurisdiction. Writ petition being devoid ofmerit is dismissed. (NITIN B. SURYAWANSHI, J.)SVH