Justice B.V. Nagarathna, Justice K. V. Viswanathan, Supreme Court
Complaint Can Be Amended Even After Cognizance Is Taken: Supreme Court Upholds Amendment In NI Act Case
|The Supreme Court took note of the fact that a simple issue of an amendment to a complaint had held up a trial under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for nearly two years.
While upholding an order of the Trial Court allowing the amendment application in a complaint under the Negotiable Instruments Act, 1881, the Supreme Court has held that it is fallacious to contend that in no circumstance can amendments to complaints be allowed after cognisance is taken.
The Apex Court took note of the fact that a simple issue of an amendment to a complaint had held up a trial under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for nearly two years.
The Division Bench of Justice B.V. Nagarathna and Justice K. V. Viswanathan said, “Reverting back to S.R. Sukumar (supra), it does not follow from the judgment that post-cognizance, no amendment can be allowed.
“Hence, it is fallacious to contend that in no circumstance can amendments to complaints be allowed after cognizance is taken”, it added.
AOR Chritarth Palli represented the Appellant while AOR Aabhas Kshetarpal represented the Respondent.
Factual Background
The appellant had filed a complaint under Section 138 of the NI Act, against the respondents, alleging that the respondents had purchased Desi Ghee (milk products) and that the cheques issued by them, totalling to an amount of Rs 14 lakh, had been dishonoured. A summons was issued to the respondents, and at the stage when the complainant had 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 contended that no amendment was permissible after cognisance is taken and that the amendment sought changed the nature of the complaint. The Trial Court allowed the amendment. The respondents challenged the order arguing that the amendment is an attempt to avoid liability under the Goods and Services Tax Act, 2017 (GST). By the impugned order, the High Court allowed the petition. It was in such circumstances that the appeal came to be filed before the Apex Court.
Reasoning
Dealing with the issue of whether a criminal court has the power to order amendment of a complaint filed under Section 200 of the Cr.P.C., the Bench referred to the judgment in S.R. Sukumar v. S. Sunaad Raghuram (2015) and held that it does not follow from the judgment that, post-cognisance, no amendment can be allowed. Reference was also made to the judgment in Kunapareddy alias Nookala Shanka Balaji vs. Kunapareddy Swarna Kumari and Another (2016) where it was held that even in criminal cases governed by the Code, the Court is not powerless and may allow amendments in appropriate cases.
Referring to sections 216 and 217 of the CrPC, the Bench said, “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 12 conditions prescribed therein. The test of ‘prejudice to the accused’ is the cardinal factor that needs to be borne in mind.”
Coming to the facts of the case and considering the stage of the trial, the Bench found that no prejudice would be caused to the accused/respondents. “As to what impact the amendment will have on the existence of debt or other liability is for the Trial Court to decide based on the evidence. It was a curable irregularity which the Trial Court rightly addressed by allowing the amendment. It could not be said that by allowing the amendment at a stage when the evidence of the complainant was incomplete, failure of justice would occasion”, it held.
As per the Bench, the High Court completely misdirected itself in delving into the aspects of levability of GST, which is 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.
Thus, allowing the appeal, the Bench set aside the judgment of the High Court and ordered the Trial Court to proceed expeditiously.
Cause Title: Bansal Milk Chilling Centre v. Rana Milk Food Private Ltd. & Anr. (Neutral Citation: 2025 INSC 899)
Appearance
Appellant: AOR Chritarth Palli, Advocates Harsheen M Palli, Agam Aggarwal
Respondent: AOR Aabhas Kshetarpal, Advocates Dhiliban Varadarajan, Harsh N Dudhe