Summary
In a complaint under Section 138 of the Negotiable Instruments Act, the Trial Court allowed the complainant to amend the description of goods supplied from 'Desi Ghee (milk products)' to 'milk' at a stage when cross-examination of the complainant was yet to begin. The High Court set the amendment aside as changing the nature of the complaint and as an attempt to avoid GST. The Supreme Court held that criminal courts may permit amendment of a complaint even after cognizance where the defect is curable and no prejudice is caused to the accused, found no prejudice here, and restored the Trial Court's order.
Issues
- Whether a criminal court may permit amendment of a complaint after cognizance has been taken.
- Whether the amendment of the description of goods in the Section 138 complaint changed the nature of the complaint or caused prejudice to the accused.
Provisions considered
- Section 2(d) (corresponding to Section 2(1)(h) BNSS, 2023), Code of Criminal Procedure, 1973A complaint may ordinarily even be oral. Where, as under Section 142 of the NI Act, a written complaint is mandatory, any question of amending the written complaint should be considered by giving the widest latitude, while ensuring no prejudice to the accused. (¶ 14)
- Section 142, Negotiable Instruments Act, 1881Cognizance of an offence under Section 138 can be taken only on a written complaint; this is why amendment of such a complaint must be considered liberally, subject to the test of prejudice. (¶ 14)
- Section 138, Negotiable Instruments Act, 1881The complaint concerned three dishonoured cheques totalling Rs. 14 lakhs; the dispute over amendment had held up the trial for nearly two years. The effect of the amendment on the existence of the debt or liability is for the Trial Court to decide on evidence. (¶¶ 2, 3, 18)
- Section 200, Code of Criminal Procedure, 1973The power of a criminal court to order amendment of a complaint filed under this provision is settled by S.R. Sukumar: a curable infirmity may be cured by formal amendment where no prejudice is caused. (¶ 8)
- Sections 216 and 217 (corresponding to Sections 239 and 240 BNSS, 2023), Code of Criminal Procedure, 1973The provisions on alteration of charge, proceeding with trial where there is no prejudice, and recall of witnesses show that amendments are not alien to the Code and that prejudice to the accused is the cardinal factor in considering amendments. (¶¶ 15, 16)
Held
- Whether a criminal court can order amendment of a complaint is no longer res integra: an easily curable legal infirmity can be cured by a formal application for amendment where no prejudice is caused to the other side, even though the Code contains no enabling provision; where the infirmity is not curable or prejudice is likely, the amendment must be refused. (¶ 8)
- It is fallacious to contend that amendments to a complaint can never be allowed after cognizance is taken. Modi Distillery itself concerned a stage after cognizance, and the four reasons given in S.R. Sukumar do not establish that post-cognizance amendment is barred; Kunapareddy reiterates that a criminal court is not powerless to allow amendments in appropriate cases. (¶¶ 10, 11, 12)
- Munish Kumar Gupta, which disallowed alteration of the date of a cheque, is distinguishable because that amendment bore on the time frame for the notice of demand and on the balance in the account, and was sought after long delay. (¶ 13)
- Since a complaint may ordinarily be oral, amendment of a mandatory written complaint should be considered with the widest latitude, subject to there being no prejudice to the accused; Sections 216 and 217 CrPC on alteration of charge confirm that prejudice to the accused is the cardinal test. (¶¶ 14, 15, 16)
- The amendment was moved after the complainant's chief-examination and before cross-examination, and concerned only the description of the product supplied, an error carried over from the legal notice. No prejudice would be caused to the accused; it was a curable irregularity rightly allowed by the Trial Court, and the actual facts and the effect on the debt or liability are for trial. The High Court misdirected itself by examining the leviability of GST, which is for the authorities under that statute, and the amendment did not alter the nature and character of the complaint. (¶¶ 17, 18, 19)
Result
Appeal allowed. High Court order in CRM-M No. 53932 of 2023 set aside and the Trial Court's order dated 02.09.2023 allowing the amendment restored; Trial Court to proceed expeditiously; parties at liberty to apply for recall of witnesses already examined.