Appeal
2. Procedure, it is said, is only a handmaiden and not a mistress of justice. However, the said adage has been followed only in the breach in this case. A simple issue of an amendment to a complaint has held up a trial under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act”) for the last nearly two years.
Brief Facts
3. The appellant, on 08.04.2022, filed a complaint under Section 138 of the NI Act, against the respondents. The complaint averred that the respondents had purchased Desi Ghee (milk products) and that cheques issued by them numbering three and totaling to an amount of Rupees Fourteen Lakhs had been dishonored. Summons was issued to the respondents and at the stage when the complainant was yet to be cross-examined, an amendment application to amend the complaint was moved by the appellant. The appellant contended that due to a typographical mistake it had been pleaded that the respondents had been purchasing Desi Ghee (milk products) while it should have been that the respondents were purchasing “milk”. The respondents vehemently objected to the amendment. It was contended that no amendment was permissible after cognizance is taken and that the amendment sought, changed the nature of the complaint.
4. By order dated 02.09.2023, the Trial Court held that since the complainant was yet to be cross-examined, no prejudice would be caused to the accused/respondents. It was also held that the amendment was in the nature of a typographical error, moved at an initial stage of the case. So holding the amendment was allowed.
5. The respondents challenged the order under Section 482 of Code of Criminal Procedure (for short ‘the Cr.P.C.’). It was additionally contended that the amendment was not a typographical error since even in the legal notice that preceded the filing of the complaint, what was mentioned was “Desi Ghee (milk products)”. It was further argued that the amendment is an attempt to avoid liability under the Goods and Services Tax Act, 2017 (for short the ‘GST’).
6. By virtue of the impugned order, the High Court has allowed the petition, holding that the amendment sought was not in the nature of a typographical error, but it had a wider impact upon the entire matter in dispute and, therefore, it changed the nature of the complaint. The High Court also found merit in the contention of the respondents that the amendment was sought, as no GST was leviable on milk.
Analysis
8. The issue, whether a criminal court has power to order amendment of a complaint filed under Section 200 of the Cr.P.C., is no longer res integra. In S.R. Sukumar v. S. Sunaad Raghuram this Court held as under:-
“19. What is discernible from U.P. Pollution Control Board case is that an easily curable legal infirmity could be cured by means of a formal application for amendment. If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the court may permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the court shall not allow such amendment in the complaint.”
9. The learned counsel for the respondents sought to distinguish the judgement in S.R. Sukumar’s case (supra) by contending that in the said case amendment was sought and allowed at the pre-cognizance stage and as such the said case can have no application here. We are unable to countenance the said submission.
10. A careful reading of the judgment in S.R. Sukumar’s case (supra) reveals that the said judgment followed the earlier judgment of this Court in U.P. Pollution Control Board vs. Modi Distillery and Others. In Modi Distillery (supra), after the process was issued to the respondents therein, a revision was filed by few of the accused and a Section 482 petition was filed by few other accused. Invoking the revisional jurisdiction, the High Court quashed the proceedings holding that vicarious liability could not be saddled on the Directors unless “Modi Industries Limited” was arrayed as accused. The Complainant in that case had arrayed “Modi Distillery”, an industrial unit and averred that Modi Distillery was a Company. The High Court focusing on the technical flaw in the complaint quashed the proceedings on the premise that “Modi Industries Limited” was not made an accused. This Court, while allowing the appeal of the Complainant-U.P. Pollution Control Board, held as follows:-
“paras. 6 and 7”
This Court allowed the appeal and set aside the order of the High Court and restored the order of the Chief Judicial Magistrate directing issue of process and directed that the trial be proceeded expeditiously. What is significant to notice is that Modi Distillery (supra) was a case where cognizance was taken at a stage when the accused approached the High Court and it was then that this Court observed that a formal application for amendment for substituting the name would have cured the defect.
11. Reverting back to S.R. Sukumar (supra), it does not follow from the judgment that post-cognizance, no amendment can be allowed. In fact, a reading of the penultimate paragraph of the judgment clearly brings out the fact that four distinct reasons were given: –
“para.20”
Hence, it is fallacious to contend that in no circumstance can amendments to complaints be allowed after cognizance is taken.
12. Similarly, in Kunapareddy alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari and Another, it was held that even in criminal cases governed by the Code, Court is not powerless and may allow amendments in appropriate cases. The Court in Kunapareddy (supra) followed the holding in S.R. Sukumar (supra).
Normally complaint could even be oral but in Cheque cases it must be in writing
14. The term “complaint” is defined in Section 2(d) of the Code of Criminal Procedure, 1973 [Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita, 2023] which reads as follows:-
“2 (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.”
As would be seen ordinarily, a complaint could even be oral. However, dealing with a case under Section 138 of the NI Act, we must notice that Section 142 of the NI Act states that to take cognizance of any offence punishable under Section 138, a written complaint is mandatory. Unless expressly prescribed, if to set a criminal case in motion ordinarily an oral complaint would be sufficient, any question about amendment of a written complaint should be considered by giving the widest latitude. However, as was rightly pointed out in S.R. Sukumar (supra), it should be ensured that no prejudice should be caused to the accused.
15. It will be appropriate to observe that amendments/alterations are not alien to the Code of Criminal Procedure. Section 216 of the Cr.P.C. deals with the power of Court to alter any charge and the concept of prejudice to the accused. No doubt when a charge is altered, what is altered is the legal provision and its application to a certain set of facts. The facts per se may not be altered. However, the section does throw some light in considering the issue of amendments.
Alteration of Charge
16. Section 216 and 217 of Cr.P.C [Section 239 and 240 of the Bharatiya Nagarik Suraksha Sanhita, 2023] read as follows:-
“sections 216 & 217 Cr.P.C”
It will be noticed that when a charge is altered, if there is no prejudice to the accused, the trial can be proceeded with. Further, if it is likely to prejudice, the Court may either direct a new trial or adjourn the trial to such period. Section 217 of the Cr.P.C. grants liberty to the prosecutor and the accused to recall witnesses when charges are altered under the conditions prescribed therein. The test of ‘prejudice to the accused’ is the cardinal factor that needs to be borne in mind.
17. We have carefully perused the complaint and the application for amendment. The amendment was moved at a stage when after summons being issued to the respondents, the chief examination of the complainant had concluded and when cross-examination was awaited. The amendment made is also only with regard to the products supplied. According to the complainant, while what was supplied was “milk”, by an inadvertent error “Desi Ghee (milk products)” was mentioned. The error which occurred in the legal notice was carried in the complaint also.
19. The High Court completely mis-directed itself in delving into the aspects of leviability of GST which would be the concern of the appropriate authorities under the relevant statute. It could also not be said that the amendment altered the nature and character of the complaint.
20. For the reasons aforestated, the appeal is allowed. The judgment and order of the High Court of Punjab and Haryana at Chandigarh in CRM-M No. 53932 of 2023 (O&M) is set aside and that of the Trial Court dated 02.09.2023 is restored. The Trial Court shall proceed expeditiously and the parties will be at liberty to apply for recall of witnesses already examined.
The judgments cited or involved in this case are:
S.R. Sukumar v. S. Sunaad Raghuram – (2015) 9 SCC 609
U.P. Pollution Control Board vs. Modi Distillery and Others – (1987) 3 SCC 684
Kunapareddy alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari and Another – (2016) 11 SCC 774
Munish Kumar Gupta vs. Mittal Trading Company – 2024 SCC OnLine 1732
Acts and their sections
Negotiable Instruments Act, 1881 (NI Act)
Section 138
Section 142
Goods and Services Tax Act, 2017 (GST)
Code of Criminal Procedure (Cr.P.C.)
Section 482
Section 200
Section 216
Section 217
Bharatiya Nagarik Suraksha Sanhita, 2023
Section 2(1)(h) (equivalent to Section 2(d) of Cr.P.C.)
Section 239 (equivalent to Section 216 of Cr.P.C.)
Section 240 (equivalent to Section 217 of Cr.P.C.)
Party
Bansal Milk Chilling Centre – Rana Milk Food Private Ltd. & Anr – Criminal Appeal No. 3178 of 2025 (Special Leave Petition (CRL.) No. 15699 of 2024) – 2025 INSC 899 – July 25, 2025 His Lordship Mrs. Justice B.V. Nagarathna and His Lordship Mr. K.V. Viswanathan.
